Immigration (Leave to Enter and Remain) (Amendment) Order 2024

Baroness Hamwee Excerpts

Tuesday 7th May 2024 Grand Committee

[Baroness Hamwee (LD)]

I am grateful to the Minister for that explanation, although I have to say that my head was beginning to spin even though I spent a bit of time looking at this issue yesterday. I have a couple of questions and a request for an assurance on which I wrote to the Minister yesterday by email, which I hope got to him.

My first question is: with the judgment having been given in December 2022, why has this taken so long? I appreciate that it will have needed some consideration. I note too that the current guidance was published in November last year, so it seems to pre-empt the order. Does it?

The order takes effect the day after it is made, so I wonder about the sequence of events. Being more practical about it, I wonder whether any people will be caught in the gaps. I do not feel at all qualified to guess at that, but there may be applications pending. In the last debate, there was reference to unintended consequences—I hope that will not be the case here.

I am grateful to the organisation the3million for its briefing on this next issue. A pre-settled status holder who has not achieved permanent residence will be affected. Such a person will not ultimately be able to apply for settled status if they are absent from the UK for too long, and they are at risk of having their pre-settled status curtailed if they are away for too long. The Explanatory Memorandum refers to that at paragraph 5.8 but these issues are not immediately identifiable from the order itself. The substantive part of it basically says, in four different places, “after such and such, omit the word ‘unlimited’”, which seems quite hard for an adviser to follow through.

The change in legislation following the High Court judgment is welcomed by the3million, but it is concerned that both individuals and advisers—I should think that advisers dealing with this sort of thing must have a permanent headache—will incorrectly think that pre-settled status holders can be away for up to five years without loss of status. The organisation has said to me that it explains to them that that is indeed the case but they should beware because it is meaningless for an individual who does not have permanent residence rights in law, and that in itself is not straightforward to explain. It says that a pre-settled status holder who does not have permanent residence rights and is away for over six months is likely to be questioned at the border on return and is at risk of their status being curtailed.