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

Stuart C McDonald Excerpts

Tuesday 3rd March 2020 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Ms Nokes. You will take a particular interest in this legislation, given your previous role. You will know better than anybody that I have been banging on about appeal rights for a considerable period, so I welcome the Minister’s introduction of regulations to enact them.

That said, I echo a fair number of the questions and concerns that the shadow Minister raised, particularly on funding for advice, and I will return to a couple of the technical issues that she raised. On whether someone should have the right to appeal against the decision that their application is invalid, although I understand that it is long-standing Home Office practice for there to be no right of appeal in those circumstances, the reason behind that escapes me.

Disputes about nationality may depend on quite technical nationality laws, so it is slightly disturbing that someone may not be able to challenge a decision that they are not French or Polish, for example. Issues of identity may depend on problems with the way that someone’s name is spelled, which can vary in official Government documents, so it is slightly worrying that 3,280 applications have been found invalid and that those individuals will not have a right of appeal. Will the Minister provide more information on the different types of “invalid” refusals? Are those 3,280 refusals to do with applicants’ identities or nationalities?

I also share the shadow Minister’s concerns about the 31 January 2020 deadline and the reasons why it has been picked as a cut-off point. Even from a selfish Home Office point of view, it seems strange to say to folk, “We are refusing your application, but rather than give you a right of appeal, we ask you to apply again,” only for the applicant to appeal if the same decision is made again. Why not just give those with outstanding applications the right to go straight to appeal?

I will finish my remarks on a broader point. Ideally, I would like the provisions to be in primary rather than secondary legislation. I understand that an immigration Bill is due in the not-too-distant future; perhaps the Minister can indicate when that will be. The appeal rights are a fundamental safeguard for lots of people; the shadow Minister mentioned Zambrano carers, but there are all sorts of others, too.

The Government very generously made a unilateral commitment to Zambrano carers and others, so the scope of the EU settlement scheme is broader than required under the withdrawal agreement, which is absolutely welcome, but those rights are enshrined only in immigration rules, and the appeal rights are enshrined only in secondary legislation. Rather than enshrining people’s right to be in this country in bits of legislation that can be changed virtually at the stroke of an Immigration Minister’s pen, I want them to be enshrined in statute, so that people have that protection.

As the Minister knows, I have all sorts of other fundamental concerns about the nature of the settlement scheme—whether it should be a declaratory system, digital only and so on—but I will leave those matters for when the immigration Bill is introduced. I absolutely welcome the establishment of the right of appeal.

The Minister has one or two questions to answer on the technical issues that the shadow Minister flagged up, and I look forward to further debate on the progress of the EU settlement scheme.