Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

Baroness Hamwee Excerpts

Monday 9th March 2020 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, these regulations are introduced under the powers in Section 11 of the European Union (Withdrawal Agreement) Act 2020. They provide an important right of appeal against immigration decisions on citizens’ rights. The regulations are required to meet our obligations under the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement.

The Government have been clear in our commitment to protect the rights of EU, other EEA and Swiss citizens who have made this country their home. They are our friends, our family and our neighbours, and we want them to stay.

The EU settlement scheme makes it easy for EU citizens and their family members who want to stay in the UK to get the immigration status they need. As announced last month, we have already had more than 3.2 million applications, with nearly 2.9 million people granted status. If an applicant disagrees with the decision in their case, they can apply again to the scheme completely free of charge and they have until 30 June 2021 to do so. They can also apply for an administrative review, meaning that their case is reviewed again by Home Office caseworkers, if they are refused on eligibility grounds or granted pre-settled status rather than settled status. The fee for this service, which is £80, will be refunded if the original decision is withdrawn due to a caseworker error. These appeal rights provide further reassurance to EU citizens that they remain welcome and can continue to live and work in the UK and that we will uphold our commitment to guarantee the rights of EU citizens.

The regulations basically do two things. First, they establish appeal rights against a wide range of decisions affecting a person’s right to enter and live in the UK under the EU settlement scheme. This includes those refused leave under the scheme or those granted pre-settled status rather than settled status. It also includes those refused entry clearance in the form of an EU settlement scheme family permit or travel permit. The regulations provide an appeal route for those whose rights under the scheme are restricted; for example, where their status is revoked or curtailed.

Secondly, the regulations ensure that existing rules and procedures are applied to the operation of appeal rights. They go further than required under the agreements by providing appeal rights in line with the UK’s more generous domestic implementation. This means that anyone who can make an application under the scheme, including non-EU family members, will have a right of appeal if refused or granted pre-settled status.

Appeals under the regulations will follow the same process as current immigration appeals. They will be heard by the immigration and asylum chamber of the First-tier Tribunal. With permission, there will be a further onward right of appeal to the Upper Tribunal on points of law. The exception is where the decision is certified on national security grounds or where sensitive information cannot be made public. As with current immigration appeals, these cases will be referred to the Special Immigration Appeals Commission.

The regulations are undeniably complex. This is because of the number of situations requiring a right of appeal under the agreements. There is also a need to apply existing rules relating to appeal rights, which are themselves complex.

However, we are committed to making the appeals process as simple as possible for applicants. The decision letter will tell them whether they can appeal and will direct them to the relevant information on GOV.UK. There is also support available by phone, in person or in writing for those who do not have access to online facilities or who need additional assistance.

These regulations ensure that we comply with the requirements of the agreements and are an essential part of our commitment to protecting the rights of EU citizens. I commend them to the Committee. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister. She mentioned administrative review. I want to take this opportunity to ask her about the experience so far. I came across a blog, although I cannot remember whose. I think it was a barrister’s. It seems to have become the custom for members of the Bar—I am very glad of it—to blog as their way of advertising their services. I will probably get some complaints, having said that. This blog said that, following a freedom of information request, the inquirer found that 89.5% of applications that had gone for administrative review were successful.

The noble Baroness mentioned refunds. Does she know how much has had to be refunded, what the associated costs of doing so might be and whether the Home Office has a view about why this is happening with so much success at that stage?

Since the order came into force on 31 January, when will time start running in the case of decisions made before today or before the matter goes to the House—in other words, before the SI is approved?

I confess to having some concern about Regulation 14, which allows for an appeal from outside the United Kingdom. Will it not be the case that many appellants will have been required to leave? Concerns have been expressed in other parts of the immigration forest about the difficulties of appealing from abroad.

Am I right in thinking that this SI will be the basis for any claim with regard to invalidity—for instance, if the Home Office has said that the applicant is not an EU citizen and is therefore not in the settled status scheme?

Given the number of grants of pre-settled status that have been made, has the Home Office made any assessment of the numbers of appeals against that status from people who think that they should have been granted full settled status? It seems to me that there could be an early and considerable spike in the work.

The Minister mentioned the considerable help currently available from a number of organisations that have received grants to assist applicants for settled status. The EU Select Committee—it may have been the EU Justice Sub-Committee—heard from some of the organisations a couple of weeks ago. At that stage, they were waiting to hear whether their funding would continue after the end of this month. If she has any news on that, the Committee—and, even more so, the organisations concerned—would be glad to hear it.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining the regulations to the Grand Committee this afternoon. The noble Baroness, Lady Hamwee, raised all the points I was going to raise—

[Baroness Hamwee]

Sorry about that—

[Lord Kennedy of Southwark]

It is absolutely fine. I shall not repeat them because it would detain the Committee longer than necessary, but the noble Baroness has raised some very important points. I support the regulations and we are pleased they are here, but our concern and worry is that the people who are vulnerable are those who have not picked up on the need to use this system. If they do not use it, they will find themselves, in June 2021, to be in the UK illegally, even if they have been here for many years. That is what we are worried about.

The other point of concern is that there have been a few issues in the Home Office in terms of appeals and other problems in the past. We are very worried that someone might find themselves in difficulty, so what we are looking for from the Minister is some reassurance about that and about how people will be treated. What will the Government do to ensure that people know they need to apply for this? It may well be that some of those people who are here from elsewhere in Europe are in quite low-paid jobs, do not have a lot of money and are just not picking up on it. What we do not want is a situation where people do not understand that they need to apply and find themselves in difficulty with the authorities and potentially being removed from this country when, had they applied, they would have been given the right to stay here. That is the reassurance every noble Lord here is looking for. In principle, I am very happy with there now being a right to appeal, so I will leave it there.

[Baroness Williams of Trafford]

My Lords, I thank both noble Lords for their points. I thought this would be the easy SI and that every noble Lord would be so happy with the appeal processes. The noble Baroness, Lady Hamwee, asked why so many appeals are successful. An appeal may succeed where new information is provided.

[Baroness Hamwee]

Does the Minister mean an administrative review?

[Baroness Williams of Trafford]

I apologise. I meant that an administrative review may succeed when new information is provided. I understand that about 900 applications for the admin review have been received. The noble Baroness asked when it starts—I am assuming 31 January.

On what happens if people miss the deadline, we have been very clear that where there are reasonable grounds for missing the deadline people will be given a further opportunity to apply.

[Baroness Hamwee]

I am sorry; I did not think I had asked terribly difficult questions. On my question about the time running, there are time limits for appeals, but we have gone beyond the point when the SI is effective because that date is 31 January. I am not clear whether the time from 31 January to now is taken off the time available to an appellant to get the appeal in. This is quite a practical point. I will go on rambling so that the Minister can talk to her officials and is able to get this on to the record as I think that would be helpful. Perhaps I was clear in my question.

[Baroness Williams of Trafford]

We have some clarity now. It will run—is the noble Baroness asking me how long it will run for?

[Baroness Hamwee]

No. I am asking whether the period between 31 January and whatever the date is in March counts for the period towards the number of days within which an appeal has to be lodged because the order is in force but people will presumably will not be making applications under it until has gone through the parliamentary process.

[Baroness Williams of Trafford]

They are already doing it.

[Baroness Hamwee]

I wonder why we are here.

[Baroness Williams of Trafford]

On pre-settled status appeals, there are 900 applications for administrative review, but whether they are for pre-settled status I do not know. If I have the figures, I will provide the noble Baroness with them. On her question about immigration control, this is not for the purposes of immigration control. I thought the noble Baroness might be concerned about that. The funding for the groups that are helping runs through the financial year.

[Baroness Hamwee]

I am sorry for treating this as a conversation, but I understand that their funding goes to the 31st of this month, but they need to know, if they do not know already, whether they will be able to employ people to continue the service.

[Lord Kennedy of Southwark]

I understand that when this came up in the Commons the Minister said the thing should be resolved in a couple of weeks. That was a week ago.

[Baroness Williams of Trafford]

That is because we will be announcing the arrangements for the financial year 2020-21 shortly—in the Budget, I am guessing. I hope that rather clumsily answers the noble Baroness’s questions.

[Baroness Hamwee]

I wish to make it clear from these Benches that we do not think that is satisfactory. We understand about financial years and so on, but for a small organisation, or a medium-sized or quite large organisation, which does not know whether it will be able to continue the service it is pretty difficult that it will be within a couple of weeks of the end of the year.

[Baroness Williams of Trafford]

I totally understand that point. It is frustrating for any group or organisation waiting for future funding announcements to be in this position right at the end of the financial year; I really get that. I just want to answer the last point made by the noble Lord, Lord Kennedy, on vulnerable people. As he knows, we have set out some funding for organisations who will help vulnerable people. I think they are the last cohort of people on whom our attention will need to focus: as he says, people who do not even know that they must apply. That work is well under way across the country and, given the number of applicants, which is 3.2 million, it is clearly going well for most people, but he is right to raise that final cohort.