Citizens’ Rights (European Affairs Committee Report)

Baroness Ludford Excerpts

Monday 11th September 2023 Grand Committee

[Baroness Ludford (LD)]

My Lords, I have been delighted to join the European Affairs Committee, serving briefly under the noble Earl, Lord Kinnoull, and now under the noble Lord, Lord Ricketts—we are very fortunate in our chairs.

It is a matter for celebration that over 6 million EU citizens have been granted settled status in the UK such that they can continue their enormous contribution from which our country has benefited so much. As Monique Hawkins of the3million—I share the tribute that the noble Lord, Lord Wood, paid to that organisation —told our committee in May:

“I would like to acknowledge the success of the EU settlement scheme and how the Home Office … got so many applications through in a relatively short time, but”—


she adds a little sting in the tail—

“if asked to characterise the current state I would call it somewhat stuck”.

I fear the gremlins need to be addressed. To a certain extent, I will repeat what has been said.

It is pretty shocking that it took a court case to resolve the problem of Home Office insistence on a new application from those originally granted only pre-settled status. I congratulate the Independent Monitoring Authority, which took the challenge to the High Court. It could teach other watchdogs a thing or two—one thinks of water and sewage—about being on the ball and on the case. However, as the noble Earl, Lord Kinnoull, said, there is a woeful lack of clarity affecting 2 million people about how the automatic conversion to settled status will operate in practice. I look forward to the Minister’s reply.

Can the Minister also explain how the department’s stance of encouraging further applications for settled status by individuals who have already applied for and received pre-settled status is consistent with the High Court judgment? The3million says that digital status continues to say that people’s rights expire, which is giving incorrect and unlawful information to prospective employers and landlords. Can he explain why a still valid EEA permanent residence document is no longer considered a reasonable ground for a late application? Surely any common-sense reading of a reasonable ground must include such situations.

Can the Minister explain delays in issuing certificates of application? What additional steps are being taken to ensure that in future all such certificates are issued without delay? Why does the Home Office refuse to accept the IMA recommendation of a service standard of five working days to issue such a certificate? As an example of the problems that arise, given that all NHS secondary care is chargeable at 150% for the time before someone can evidence their application for a certificate of application, delay can be very expensive as well as inconvenient.

The3million, as has been mentioned, worries that the axing of rights of administrative review, which was only announced in a written form last week, is likely to hugely increase the workload on immigration tribunals. Can the Minister amplify the reasons for withdrawing administrative review?

On the issuing of public documents, organisations representing EU citizens have told us that applicants to the settlement scheme face difficulties with the certificate of application, when accessing benefits and securing a national insurance numbers and documents such as the EHIC card and a driving license. I hope that the Committee will pursue this in further correspondence, if we do not get a good response today.

The noble Earl, Lord Kinnoull, mentioned how, given the Government’s stubborn insistence on reliance on a digital-only system for proof of status, it seems highly inconsistent for the Government to say that users should not have relied on their digital status when accessing benefits or healthcare during the database debacle, but rather an email or postal notification of decisions. I agree with the3million that their proposal for an app with a QR code has substantial merit and deserves to be considered and engaged with in good faith.

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[Baroness Ludford (LD)]

I think I had just said that I urged that the3million’s proposal for a QR code should be considered and engaged with in good faith—at least, I hope I had said that.

I have two or three final points. The first is the concern about reduced funding to support vulnerable citizens in the light of the increased complexity of late applications. That would concern EU citizens in the UK and UK citizens in the EU. I hope the Minister can give us some assurances on that point.

What systems will be in place to ensure that EU citizens face no additional checks or disruption to travel when the ETA rollout begins, given that the advanced passenger information system might not be ready?

Finally, I assure the noble Lord, Lord Balfe, who addressed questions to the party spokesmen, that Liberal Democrat policy is to rejoin the single market and hence restore freedom of movement and, long term, the aspiration may be to rejoin the EU.

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[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, I am very grateful for the contributions of the Grand Committee, and in particular I congratulate the noble Earl, Lord Kinnoull, on securing the debate. Clearly, this is a topic that has long been of interest to him. On behalf of the department, I congratulate him on his distinguished term as chairman of the European Affairs Committee and its predecessor body. His scrutiny has of course been very powerful and helpful, and I thank him for that.

Turning to the EU settlement scheme, it will come as no surprise—and many members of the Committee have alluded to this—that the scheme has been a great success. We have gone above and beyond our obligations in the citizens’ rights agreements to protect the rights of European Economic Area and Swiss citizens and their family members to give them a route to settle in the UK. I also understand and fully support the interest in how UK nationals are treated in EU member and the EFTA states.

As we have heard, around 1 million UK nationals live in the European Union, with thousands more UK nationals living in Switzerland and the EEA and EFTA countries. The UK Government continue to work closely with the European Commission and national authorities to ensure the rights of UK nationals in Europe under the agreements are upheld. We also continue to press the European Union for clear communications to UK nationals in the European Union on how they can secure and access their rights.

The United Kingdom publishes more comprehensive statistics on the EU settlement scheme than any EU member state on their equivalent schemes. I want now to share some of these statistics with the Grand Committee. The EUSS is the UK’s largest ever immigration scheme. The latest data, to 30 June, shows there have been 7.4 million EUSS applications, of which 98% have been concluded, and more than 5.6 million people have been granted status. The Government are delighted that so many of our family, friends, colleagues and neighbours have obtained the status they need to remain in the United Kingdom. However, as the Home Secretary set out in her August letter, to which a number of noble Lords referred, it is right and proper that we take steps to maintain the integrity of the scheme, including measures to protect it from abuse.

Despite it being more than two years since the June 2021 application deadline for those resident before the end of the EU exit transition period, the volume of late applications has remained high. Many of the applications in the so-called backlog to which the noble Lord refers are in fact recently made applications. A number of these include applications made by late applicants, such as those joining family members, or from repeat applicants, such as those looking to move from pre-settled to settled status. We received nearly 337,000 such applications in the first six months of this year alone.

We do not publish data on pending applications, but internal figures for applications pending by 31 March indicate that 66% of EUSS applications had been waiting for 90 days or less. That rises to 76% when including applications pending for 180 days or less. The Home Office will make this analysis available in the next published statistics, but no doubt noble Lords who raised the question of whether there was a backlog will ponder them and see that this is a very efficient system. Applications which have been waiting for longer than 180 days are usually due to suitability concerns, such as pending prosecutions.

As noble Lords will be aware, the citizens’ rights agreements oblige us to accept late applications where the person has reasonable grounds for failure to respect the deadline. In the first two quarters of this year, there were on average 18,000 late applications made each month. While the overall refusal rate for the EUSS remains low, at 8%, this is not the case when looking specifically at late applications. For this case type, the refusal rate stands at 47% in the most recently published data. I suggest this reflects the increasing volumes of spurious applications being made to the scheme, with refusals on eligibility grounds in the majority of cases.

I will now set out the recent changes to the EUSS, most of which have been implemented through changes to the relevant Immigration Rules. The noble Baroness, Lady Ludford, in particular alluded to the change from 9 August of a person’s reasonable grounds for submitting a late application being assessed at the very first stage of the process, known as the validity stage, as the noble Earl, Lord Kinnoull, outlined. In practical terms, this means that an individual must show they had reasonable grounds for the delay in making their application as a pre-requisite for making a valid application to the scheme. Only once their application is confirmed as valid are they issued with the certificate of application. That is important because it gives those covered by it the benefits of the citizens’ rights agreements to access temporary protections, such as the right to work in the United Kingdom and claim benefits where eligible. This change in process reduces the scope for speculative applications to the scheme solely to benefit from the temporary protection available until an application is finally determined. It aligns with similar approaches that are already being applied to United Kingdom nationals in EU member states with constitutive systems.

We have also updated our published guidance to provide clear information on how reasonable grounds considerations are now being applied. This is in stark contrast to that adopted in EU member states, where we have been unable to identify equivalent guidance or publicly available information for United Kingdom nationals that matches the comprehensive approach that the United Kingdom has taken in respect of EU citizens. Indeed, the United Kingdom Government continue to urge the European Commission to ensure that member states publish flexible and pragmatic guidance as to what constitutes reasonable grounds for late residency applications so that UK nationals do not encounter difficulties.

As has been referred to by the noble Lord, Lord Hannay, we have separately closed two transitional routes which were not required under the citizens’ rights agreements. These are commonly referred to as the Zambrano primary carers and family members of a qualifying British citizen routes. They reflected routes required by European case law, for which provision was made under the EUSS on a transitional basis. After more than four years, it is both appropriate and fair that such individuals should now meet the same family Immigration Rules that apply to other dependants of British citizens.

In addition, we have made changes that prevent illegal entrants from being able to apply as a joining family member under the EUSS. This reinforces our approach to tackling illegal migration and helps to prevent spurious applications being made by individuals seeking to circumvent our standard immigration processes.

On an issue that has been raised by a number of noble Lords in respect of the removal of administrative review, on 7 September, we laid changes to the Immigration Rules to remove the ability for EUSS and EUSS family permit applicants to apply for an administrative review. A right of appeal will, of course, be maintained as the mechanism for individuals to challenge the decision, and to meet our obligations under the citizens’ rights agreements. The changes will apply to all relevant decisions made on or after 5 October this year. We have gone above and beyond our citizens’ rights obligations in offering both a right of appeal and administrative reviews for EUSS applicants. It is therefore now the right and fair course that we bring the EUSS in line with other immigration routes, where a dual right of redress does not exist.

On a question raised by many noble Lords on the issue of the implementation of the changes in the light of the judicial review brought by the IMA, in the statement of changes in Immigration Rules taking effect in August, we also introduced amendments to that effect. The High Court found that the withdrawal agreement residence right of a person with pre-settled status under the EUSS does not expire for failure to make a second application to the scheme. The changes to the Immigration Rules reflect the fact that pre-settled status holders will have this status automatically extended by two years, if they have not obtained settled status ahead of the date when their pre-settled status was due to expire.

The extension will be applied automatically. There will be no need for individuals to contact the Home Office and they will be notified once the extension has been applied. We have already completed the extensions for those whose pre-settled status was due to expire in September—this month—and future extensions will be applied at the start of each month, to those whose status expires the following month. This ensures that nobody with pre-settled status will lose their immigration status through the lack of a second application to the EUSS. Should the Home Office find that an individual no longer meets the eligibility criteria for pre-settled status, we will take steps to cancel or curtail it—but of course those decisions could carry with them a right of appeal.

Our objective is to encourage those eligible for settled status, as has been outlined, to obtain it as soon as possible. This is, of course, permitted by the judgment. Since March this year we have been sending reminders to apply to those who have held pre-settled status for almost five years, and we strongly encourage people to apply for settled status as soon as they are eligible. This ties back to the point so eloquently made by the noble Lord, Lord Collins, in respect of wanting to know with certainty what your status is.

I am extremely pleased to see thousands of people moving from pre-settled to settled status each month as a result of those communications. To 30 June this year, 608,380 people had made that conversion. Looking to the future, we intend to take steps automatically to switch as many eligible pre-settled status holders as possible to settled status, without them needing to make a further application. To do this, we plan to undertake automated checks of pre-settled status holders against government-held information—for example, in respect of their ongoing continuous residence in the UK. We aim to have this automated process in place during 2024.

The judicial review judgment also concluded that a pre-settled status holder acquires a right of permanent residence under the withdrawal agreement automatically, once the conditions for it are met. The planned process to automatically switch eligible pre-settled status holders to settled status, alongside encouraging applications for settled status by those eligible for it, will support the implementation of this aspect of the judgment.

I turn to the question posed by the noble Earl, Lord Kinnoull, in relation to the detail of that policy. We note that the automatic conversion of pre-settled to settled status is not a requirement of the judgment, just as EU member states are not required automatically to issue permanent residency cards to UK nationals. However, in response to the noble Earl’s question on our engagement with the independent monitoring authority, I stress that we have been engaging with it on matters of implementation. We would suggest that the method of the automatic conversion I have just described is not unclear in any way, and that our implementation of the judgment is abundant for any who wish to see it. We have sought feedback and views on our planning and will, of course, continue productive engagement with the IMA and other interested stakeholders as we take forward steps to operationalise the remaining aspects of the judgment.

I turn briefly to the issue concerning the refusals backfill, described by the noble Earl, Lord Kinnoull, as the database error debacle. I perhaps would not agree with that description, although I can understand his concerns. As set out in the Home Secretary’s letter to the noble Lord, Lord Wood of Anfield, all those affected were sent an email or postal notification of their refusal decision at the time the decision was made, using the contact details they had supplied. Individuals are able to update their contact details if they need to. The Home Secretary’s letter was quite clear that maintaining a certificate of application on those accounts, rather than showing a refusal decision, was not due to an error but to allow individuals to maintain temporary protection of rights during any administrative review or appeal. This is because, prior to 19 April 2022, the digital status system did not have the capability to reflect that an individual had an administrative review or appeal pending.

At the time the decision to pause uploading refusal decisions was made, the position of the UK Government was that late applications did not attract temporary protections under Article 18(3) of the withdrawal agreement. Therefore, the volume of individuals impacted by the decision was relatively small and finite, importantly. When the numbers affected subsequently grew following the Government’s decision to extend temporary protections to those applying after 30 June 2021, we maintain it was better to ensure that an individual could access their rights while an administrative review or appeal was ongoing, rather than deny those people access to their rights should they challenge the decision.

With respect to timings, on 19 April 2022, a systems change was implemented to allow accounts to maintain a certificate of application where a refusal decision was challenged. As changes to our systems are not implemented retrospectively, a separate exercise was required for cases decided between 27 June 2021 and 19 April 2022. The exercise was not run before 18 January due to the complexity of the work and other pressing departmental priorities, such as the work to implement the Ukraine family scheme and Homes for Ukraine scheme. I hope that level of detail answers the questions posed by the noble Earl, Lord Kinnoull.

Turning briefly to the question of the DWP overpayments, it has been suggested by a number of noble Lords and the noble Baroness, Lady Ludford, that a power should be exercised by the Secretary of State for the Department for Work and Pensions to waive overpayment debt for individuals affected by the refusals backfill exercise. I remind noble Lords that under legislation passed by Parliament, the Department for Work and Pensions has the legislative power to recover overpayments of universal credit under Section 71ZB of the Social Security Administration Act regardless of how the overpayment was caused. Of course, the Secretary of State has a duty to protect public funds and will seek to recover debt in all circumstances where it is reasonable.

I will touch very briefly on some further question asked by noble Lords, in particular the question about proof of status and whether that should be in documentary form. In response to that oft-expressed request in this debate for physical documents, I respectfully reiterate that we are working towards a border and immigration system that is digital by default. Immigration status in the form of an e-visa is part of this, as of course is the rolling out of the electronic travel authorisation programme. The citizens’ rights agreement explicitly allows for status to be provided in digital form.

I appreciate that I have covered some of the points raised by noble Lords; there are many others but I notice the time. I will, of course, write to noble Lords to update them on those detailed questions that I have had not had time to answer. Again, I thank the noble Earl for raising this very interesting debate.

[Baroness Ludford (LD)]

Before the Minister sits down, I am not sure that he clearly explained—it may be due to the heat in this room and my head—why the Government are encouraging people to apply again. That, I am afraid, did not come over clearly—I felt the Minister glided over that issue. If he did cover it, I will obviously check the report, but if he did not, could he possibly write to me?

[Lord Murray of Blidworth (Con)]

I think I covered it, but rather than explain it again now, given the hour, I will certainly put it in writing for the noble Baroness, for clarity.