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

Kevin Foster Excerpts

Tuesday 3rd March 2020 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I beg to move,

That the Committee has considered the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020, No. 61).

It is a pleasure to serve under your chairmanship, Ms Nokes. The regulations were laid before the House on 30 January and were introduced under section 11 of the European Union (Withdrawal Agreement) Act 2020. They provide the important right of appeal against immigration decisions on citizens’ rights under the European settlement scheme.

The regulations are required to meet our obligations under the withdrawal agreement, the European economic area European Free Trade Association separation agreement, and the Swiss citizens’ rights agreement. The Government have been clear about our commitment to protecting the rights of EU citizens, European economic area citizens and Swiss citizens who have made this country their home. They are our friends, family and neighbours, and we want them to stay. The appeal rights provide further reassurance that those citizens remain welcome and can continue to live and work in the United Kingdom.

The regulations do two things. First, they establish appeal rights against a wide range of decisions that affect a person’s right to enter and live in the UK under the European settlement scheme. That includes those who are refused leave under the scheme, or who are granted pre-settled status rather than settled status, as well as those who are refused entry clearance in the form of an EU settlement scheme family permit or travel permit. The regulations also provide an appeal route for those whose rights are restricted under the scheme, for example if 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 the withdrawal agreement requires, by providing appeal rights in line with the UK’s more generous domestic implementation. That means that anyone who can make an application under the scheme, including non-EU family members, will have a right of appeal if they are refused status or granted pre-settled status.

Under the regulations, appeals will follow the same process as current immigration appeals. They will be heard by the asylum and immigration chamber of the first-tier tribunal and, with permission, there will then 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, those cases will be referred to the Special Immigration Appeals Commission. As I am sure the Committee is aware, that is similar to provisions in other areas of immigration law.

The regulations are undeniably complex because of the number of situations requiring a right of appeal under the agreements and the need to apply existing and complex rules on appeal rights. We are committed to making the appeals process as simple as possible for applicants, however. The decision letter will tell them whether they can appeal and will direct them to the relevant information on gov.uk. Support is also available by phone, in person or in writing for those without access to online facilities or who need additional assistance.

The 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.

--- Later in debate ---

[Kevin Foster]

It has been an interesting debate, and I appreciate the support of Opposition Members. My remit does not quite extend to the Swedish passport system, so I will have to keep my remarks rather limited on that.

I start by responding to the hon. Member for Garston and Halewood. There have been more than 3 million applications and now just over 3 million determinations, and so far we have had 900 requests for an administrative review. While there is no appeal right, people who disagree with a decision can still request that review. With 900 reviews after 3 million determinations and well over 3.2 million applications—I accept that people would not apply for a review until they had got their decision—we felt the number of appeals was likely to be low. Where people have additional evidence, the logical process for them is to make another free-of-charge application to the settlement scheme. As the deadline is June next year, they have plenty of time to do that and get the status they believe they are entitled to. To be clear, if someone reapplies because they think they should have settled status rather than pre-settled status, that does not prejudice the pre-settled status they have been given. I am conscious that Members might ask whether if someone reapplied, it might prejudice the status they had been granted. The answer is no.

For those who applied before 31 January, the way to gain an appeal right is to make a reapplication to the settlement scheme. That is free of charge for anyone; there is no supplementary charge for making another application. We felt that struck the appropriate balance, because an appeal would have a charge to it, and in most cases, if there is a need to present additional evidence, it is easiest to do that through another application. To be clear, anyone who has a right to apply to the EU settlement scheme, including as a Zambrano carer and in the other examples given, may avail themselves of those appeal rights. On legal representation, the position is similar to that for use of appeal mechanisms in other immigration law.

On the system being engulfed, any member of the Committee or of this House who is interested in how the process is going is welcome to pay a visit to Liverpool. We are happy to arrange for people to visit and see what the teams are doing. Hon. Members would see that, far from being engulfed, the teams are working quickly through the largest documentation of immigration status in UK history, providing many people with certainty and assurance.

[Dr Huq]

The Minister pooh-poohed my point about other nationalities. Will he not accept that it is people who are trying to bypass this cumbersome process who are applying for another nationality? Does he not see a causal link there?

--- Later in debate ---

[Kevin Foster]

I would say it is probably slightly more cumbersome and somewhat more costly to apply for another nationality than to apply for free to the EU settlement scheme—to provide basic proof of identity and of having lived in the United Kingdom, which a person could literally do with a letter they have received. When I visited the team in Liverpool, someone was using as evidence a letter they had received about their tax payment from Her Majesty’s Revenue and Customs. That was combined with an identity card and checks on criminality. I should be clear that a very, very small number of people so far have been refused on criminality grounds. EEA citizens have been a valuable part of our community, and we should not define them by a small number of offenders. That letter was being used for pre-settled status, as that person had only just moved to the United Kingdom, but it is a lot easier to apply for settled status than to get citizenship of another country.

Fair points were made about Home Office funding for the 57 organisations not going beyond March. We expect to make an announcement on that very soon, which will provide some certainty for those operations.

[Louise Haigh]

I would be grateful if the Minister could be a little more definite on the timing. Those organisations are laying off people as we speak, which is hindering their ability to reach the most vulnerable groups.

--- Later in debate ---

[Kevin Foster]

Certainly within a week or two, we expect we will be able to confirm the position. The furthest I can go this morning is that it is our intention to continue providing support beyond the end of this month.

A valid question was asked about whether people can exercise their freedom of movement while there is an appeal outstanding. Rights continue when someone has an appeal outstanding. There is no detriment, for example, if a person leaves the United Kingdom to travel; that would not be held against them on appeal.

I have been through the points raised. I am very grateful for the support offered by Opposition Members. I hope the Committee will approve the regulations to ensure that we have an effective system of appeal, based on the principles that we use across our immigration system. We want all EU, EEA and Swiss citizens who live in our country to know that they are valued members of our community, and we want them to stay.

Question put and agreed to.