New clause 10 is important because, as the Committee should be aware, the Bill removes the current right, under EU law, to appeal against decisions relating to settled status. The new clause seeks to fill that gap by giving the right to appeal to the immigration and asylum chamber of first-tier tribunal to those whose application is rejected and those who have been granted pre-settled status but there is evidence to show that they should have been granted settled status.
As discussed during the oral evidence sessions, as it stands the only right to appeal consists of an administrative review at a cost of £80 or a judicial review at a significantly greater cost and with a drawn-out, time-consuming process. Ms Blackstock from Justice told us that it
“seems to be the most bureaucratic and inappropriate method for what is…potentially a simple grey area that requires a simple review.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee,
This is a problematic issue.
We also heard from Professor Smismans, who represents the3million, that there had been “considerable problems” with past administrative reviews by the Home Office. I am sure the Minister is aware of that. An administrative review may be fine as a first access point, but it is not sufficient on its own.
The Government clearly recognise the need to make the right of appeal available, as they have agreed that with the EU as part of the draft withdrawal agreement. That right exists under the withdrawal agreement that the Government have signed up to; UK courts and tribunals are authorised to refer cases on citizens’ rights to the European Court of Justice within eight years of the end of the transition period.
The withdrawal agreement also provides for an independent monitoring body to conduct inquiries into alleged breaches of part 2 of the withdrawal agreement. That body would also be able to receive complaints from EU nationals and bring legal action on their behalf.
So far so good, but both those mechanisms fall away in a no-deal situation. Following the delayed publication in December of the Government’s paper on citizens’ rights in the event of no deal, my hon. Friend the Member for Manchester, Gorton and I wrote to the Minister and the Under-Secretary of State for Exiting the European Union, Mr Walker with our concerns. In reply, they stated their view that it is fair in a no-deal scenario to provide the remedies generally available to non-EU citizens refused leave to remain in the UK in other parts of the immigration system.
I ask the Minister: how is that fair? In the event of no deal, the Government are proposing to reduce the time that people have to apply for settled status. The process of registering 3 million people is already a challenge, and some people believe it might be beyond the Home Office. With less time comes greater risk of mistakes, so why are the Government reducing the means of appeal?
We are talking about a finite number of people who have already been subject to two and a half years of uncertainty. It is worth remembering that about 100 EEA citizens were erroneously threatened with deportation by the Home Office in 2017. Is it really fair to anybody that we are expected to trust the Home Office to mark its own homework? An accessible right of appeal under any terms on which we exit the European Union would provide much-needed reassurance to EU nationals.