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

Lord Ponsonby of Shulbrede Excerpts

Tuesday 7th May 2024 Grand Committee

I should have said that we support the order.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support the order as well, and I thank the Minister for introducing this SI. Currently, pre-settled status lapses when somebody is outside the UK for a period of two years or more continuously; settled status lapses after five years of absence.

A court ruling, referred to by the noble Baroness, Lady Hamwee, found in late 2022 that, first, applicants granted pre-settled status should not lose their rights of residence if they do not make an application for settled status. This was on the basis that the wording of Article 13(4) of the withdrawal agreement makes it clear that a right of residence can be lost only in very specific circumstances. The expiry of the status was not among them. Secondly, the consequence of the above is that settled status rights accrue automatically once the conditions of such status have been satisfied by the individual without the need for a second application.

As we have heard from the Minister, this SI aligns the law with this ruling in ensuring that pre-settled status can lapse only after five years’ absence. The Government also announced last year that some pre-settled status holders will be automatically changed to being settled status holders this year.

Can the Minister confirm how many people have applied to switch from pre-settled to settled status but are currently waiting for a decision on their applications? We know that there is still a backlog. Will he tell us what information the Home Office has on the number of people who currently meet the eligibility criteria to switch from pre-settled to settled status but have not yet submitted an application to do so?

In July 2023, the Home Office said that its intention was to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. Can the Minister update us on the progress of those plans? As he has acknowledged, the draft order seeks to implement a change to current legislation that is required as a result of the court’s decision. We approve of the order but I would be interested in the answers to those questions. They are actually the same questions that were asked in the other place when this matter was considered.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions to this relatively short debate. It is worth saying to start that the EU settlement scheme has been a great success—and I shall come on to the numbers in a second. We have gone above and beyond our obligations under the citizens’ rights agreements and are pleased that so many families, friends and neighbours have obtained the status that they need to remain in the UK.

To respond to the various points, the noble Lord, Lord Ponsonby, asked me about facts and figures. This also answers a point that the noble Baroness, Lady Hamwee, made. There is no complacency here: as of 31 December 2023, 7.7 million applications were made to the scheme by an estimated 6.2 million people, of whom 5.7 million have obtained a grant of status. We have received 1.7 million applications since 30 June 2021, of which 38% were late applications; 39% were repeat applications, including those moving from pre-settled to settled status; 23% were joining family members; and 1% were from derivative rights applicants—please do not ask me what that means, because I do not know.

Nearly 1.6 million of the applications received since 30 June have been concluded; 746,000 people have moved from pre-settled to settled status, which represents more than half of repeat applications, and contributes to settled status outcomes being proportionately high when looking at the monthly outcome figures in the quarterly statistics. Application intake has remained high—the average monthly intake for the final quarter of 2023 was approximately 51,000. However, we continue to conclude more applications than we receive, concluding on average more than 57,000 applications a month.

Finally, there are 121,830 pending applications, compared to 142,430 in the previous data released to 30 September 202, which is a 14% reduction. I appreciate that that was a lot of numbers. It might be helpful if I commit those to paper and send them to both noble Lords.

The order is not retrospective, in answer to a question from the noble Baroness, Lady Hamwee. If the leave of a pre-settled status holder lapses before the coming into force of this order and they have not obtained a withdrawal agreement right of permanent residence, they will have lost their immigration permission to enter or remain in the UK. That is consistent with the citizens’ rights agreements, because the point at which pre-settled status currently lapses, after more than two years of absence, is more generous than any of the periods of absence permitted under the agreements.

On why we have not given pre-settled status holders a more generous permitted absence period in line with the draft order, the current provisions already allow pre-settled status holders significant periods of absence while maintaining their status. We have gone further than required by the citizens’ rights agreements. There are no plans to take a more generous domestic approach to permitted absence periods for pre-settled status holders than those set out in the agreements. Pre-settled status is a route to settlement, and we expect an individual to show a level of commitment to the UK. Not only are these absence periods well established under previous immigration arrangements with the EU; it would be unfair on UK nationals in EU member states who would not benefit from such greater flexibility.

The noble Baroness, Lady Hamwee, asked me why we were slow to implement the judgment. By virtue of UK domestic law, the withdrawal agreement as interpreted by the judgment is directly effective, which means that the rights are, and always have been, available to citizens. Our implementation is therefore focused on ensuring that it continues to be easy for citizens, government departments and third parties, such as employers and landlords, to evidence rights or check that they are in place. Some of that work is not straightforward and necessarily takes time. No guidance on the order has been published, but it will be shortly.

Finally, I thank the noble Baroness for submitting her specific question, which was about confirming that the GOV.UK web pages make it clear that the change made by the SI will not benefit a holder of pre-settled status who does not have permanent resident rights. The change will benefit pre-settled status holders who have not acquired a withdrawal agreement right of permanent residence by extending the five-year lapsing provision to all EUSS status holders. I can confirm that the GOV.UK pages will be amended to clarify the position for leave that has lapsed before and after the order comes into force. The position remains that the easiest way for a pre-settled status holder to prove their right to live permanently in the UK is to apply for settled status.

I hope that that addresses all the points raised today. I appreciate that this is a particularly complicated subject. In conclusion, the draft order upholds the judgment of the High Court; it ensures consistency in the legal framework and does so in a simple, practical and workable way. I thank noble Lords for their support and commend the order to the Committee.