Immigration (Leave to Enter and Remain) (Amendment) Order 2024
(1 week, 6 days ago)
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Lord Sharpe of Epsom
That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) Order 2024.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, this draft order, which was laid before Parliament on 11 March, will make amendments to the Immigration (Leave to Enter and Remain) Order 2000. It will remove an inconsistency between the 2000 order and the findings of a High Court judgment in proceedings brought by the Independent Monitoring Authority for the Citizens’ Rights Agreements relating to the EU settlement scheme. That scheme enables EU, other EEA and Swiss citizens living in the UK by the end of the EU exit transition period on 31 December 2020, and their eligible family members, to obtain a UK immigration status. It gives effect to key aspects of the UK’s commitments under the citizens’ rights agreements—that is, the EU withdrawal agreement and the equivalent agreements with the other EEA states and Switzerland.
In line with the agreements, the 2000 order provides for an EU settlement scheme status holder to lose their immigration permission automatically after more than a specified period of absence from the UK. For a pre-settled status holder, the specified period is currently two years’ absence; for a settled status holder, it is five years’ absence. Swiss citizens and their family members have a specified period of four years, due to differences in the terms of the citizens’ rights agreement with Switzerland.
The High Court judgment found that, where a pre-settled status holder has rights under the EU withdrawal agreement or the agreement with the other EEA states—Norway, Iceland and Liechtenstein—they can automatically acquire a right of permanent residence, which is another form of settlement, once the conditions for it are met, and so benefit from the longer period of absence. The effect of the judgment is that the 2000 order is inconsistent with that legal position because the order does not cater for the group of pre-settled status holders who have automatically acquired a permanent residence right.
That ability does not extend to Swiss citizens and their family members due to the different terms of the Swiss citizens’ rights agreement. The EU settlement scheme is also more generous than the citizens’ rights agreements as regards eligibility criteria and because, for pragmatic domestic policy reasons, it is open to wider groups of people than those covered by the citizens’ rights agreements. As a consequence, not all pre-settled status holders can automatically acquire a permanent residence right.
However, to achieve consistency, the draft order provides for all those granted leave under the EU settlement scheme to benefit from the longer absence period before their immigration permission lapses. This is irrespective of whether such individuals hold pre-settled or settled status, and whether they are from the group that has acquired a right of permanent residence.
We have done that for reasons of simplicity and operational practicality. Generally, a Border Force officer will not know on initial examination if a pre-settled status holder has obtained the right of permanent residence, as that would require a detailed examination of the circumstances and relevant evidence, which is often impractical at the border.
The change to the 2000 order does not prevent the Home Office from cancelling pre-settled status where a holder who has not acquired a right of permanent residence has been absent from the UK for longer than the period permitted by the relevant citizens’ rights agreement, which is generally six months in a rolling 12-month period. The scope of this action will remain available by decision under the Immigration Rules, rather than by lapsing of leave under the 2000 order.
For the avoidance of doubt, the draft order does not extend the permitted absence periods for holders of pre-settled status, which are set out in the relevant citizens’ rights agreements. It affects only the automatic loss of leave under the 2000 order.
The draft order gives clarity to citizens by bringing our legislation in line with the legal position as determined by the findings of the High Court judgment. It achieves that in the simplest and most sensible way while not preventing the Home Office from taking the appropriate action where a person is no longer eligible for leave under the EU settlement scheme. I beg to move.
Baroness Hamwee (LD)
I am grateful to the Minister for that explanation, although I have to say that my head was beginning to spin even though I spent a bit of time looking at this issue yesterday. I have a couple of questions and a request for an assurance on which I wrote to the Minister yesterday by email, which I hope got to him.
My first question is: with the judgment having been given in December 2022, why has this taken so long? I appreciate that it will have needed some consideration. I note too that the current guidance was published in November last year, so it seems to pre-empt the order. Does it?
The order takes effect the day after it is made, so I wonder about the sequence of events. Being more practical about it, I wonder whether any people will be caught in the gaps. I do not feel at all qualified to guess at that, but there may be applications pending. In the last debate, there was reference to unintended consequences—I hope that will not be the case here.
I am grateful to the organisation the3million for its briefing on this next issue. A pre-settled status holder who has not achieved permanent residence will be affected. Such a person will not ultimately be able to apply for settled status if they are absent from the UK for too long, and they are at risk of having their pre-settled status curtailed if they are away for too long. The Explanatory Memorandum refers to that at paragraph 5.8 but these issues are not immediately identifiable from the order itself. The substantive part of it basically says, in four different places, “after such and such, omit the word ‘unlimited’”, which seems quite hard for an adviser to follow through.
The change in legislation following the High Court judgment is welcomed by the3million, but it is concerned that both individuals and advisers—I should think that advisers dealing with this sort of thing must have a permanent headache—will incorrectly think that pre-settled status holders can be away for up to five years without loss of status. The organisation has said to me that it explains to them that that is indeed the case but they should beware because it is meaningless for an individual who does not have permanent residence rights in law, and that in itself is not straightforward to explain. It says that a pre-settled status holder who does not have permanent residence rights and is away for over six months is likely to be questioned at the border on return and is at risk of their status being curtailed.
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.