European Union (Withdrawal Agreement) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord McNicol of West Kilbride]

My Lords, I shall speak also to Amendments 8 and 9 in my name and Amendment 10 in the name of my noble friend Lady Hayter. These are relatively short amendments, but they cover a very important issue.

The settled status scheme does not currently provide a right of appeal, causing unnecessary confusion and frustration for applicants who do not receive the decision they were expecting, and in many cases were entitled to. Under the current scheme, if somebody’s application is unsuccessful, they may be able to apply for an administrative review at a cost of £80. The administrative review process applies for people whose applications were refused on eligibility grounds, or where they applied for full settled status but were awarded only pre-settled status. As we have recently heard, the percentages of those awarded pre-settled status is anywhere between 40% and 47%.

While the Bill’s current provisions allow for regulations to be made providing for appeals, this does not amount to a legal obligation, and neither does it guarantee equal treatment in all cases. There is a clear need for a formal appeals process, as we can see from the Government’s wish through making provision in the Bill to deal with this under regulation. A statutory right of appeal should be set out in primary legislation. These are important rights that should not be played with at the whim of individuals.

There have been several cases where EU residents have submitted documentation demonstrating residency for a period of more than five years, yet they have been granted only pre-settled status. The Home Office claims that the scheme is a success because only a small number of people have had their application rejected—we have heard that the number is five—largely due to the criminality of the individuals. As you would expect, we support those rejections. However, the figures discount those who may have wrongly received pre-settled status. My understanding is that the most recent statistics show that the figure for those being granted pre-settled status is, as was touched on earlier, as high as 40%. But this is a temporary form of leave lasting up to five years; it is not indefinite leave to remain. A number of NGOs have expressed concern that outstanding administrative reviews at the end of the implementation period could leave individuals in difficult and possibly hostile situations. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendment 4, to which I have attached my name, as well as Amendment 8 and others in this group. As currently drafted, the Bill does not match the Government’s previous assurances that EU citizens’ rights will be protected. It is impossible to deny that massive errors occur in the UK immigration system. People are wrongly deported, sometimes in tragic circumstances leading even to death. While many of these tragedies occur whether or not there has been an appeals process, it is certain that many more injustices will happen if an appeals process is not available. For that reason, the Bill must set out a clear right to an appeals process. It is not good enough to leave it to Ministers to decide on an appeals process in the future, because the Bill does not give a date by which an appeals process should be brought into force. This means that Ministers might never create an appeals system at all.

Also, no principles are set out, or basic rights which must be protected, or rules which must be obeyed. I do not want a situation where government inaction, for whatever reason, leads to injustice or, worse, citizens’ rights becoming another bargaining chip in the next stage of Brexit negotiations. I say this as someone who voted for Brexit—but I did not vote to be nasty or to make people feel vulnerable and at risk of being deported, and I did not vote to ruin people’s lives.

Surely the Minister understands that the Government are creating a quite complex new immigration status for EU nationals and that it is almost certain that administrative errors will happen, so a clear appeals process must be set out in this important legislation. I therefore make a plea to the Minister to take the amendment away and discuss it with his officials. We need something like this in the Bill so that errors can be put right and so that our EU friends and neighbours know that justice will be done.

[Viscount Hailsham (Con)]

My Lords, I rise briefly to speak to Amendment 10 in this group, to which I have put my name. From my point of view, the amendment is more by way of a probing amendment, because I appreciate that the regulation-making powers that are provided for in Clause 11 are subject to the affirmative resolution procedure, as set out in Schedule 4. However, my concern is that the regulations could strike down the ability to make an effective appeal review under judicial review, and I would like to know why this is.

Judicial review is a very important remedy so far as the citizen is concerned, because they can challenge the power of a public authority on the grounds that it is, for example, unlawful, unreasonable or ultra vires, or on a number of other grounds. I appreciate that the courts have sometimes gone a bit far in their interpretation of their powers, in that they have on occasion usurped the executive functions of Ministers—but that is by the way. What I would like to know in this case is why we are extending the power in the regulations to tackle judicial review, and in particular what kinds of changes the Minister has in mind when contemplating this power in the statute.