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Settled status: right to appeal

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 10:30 am on 5th March 2019.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 10:30 am, 5th March 2019

My original intention was to speak in support of new clause 34, but having considered the matter I have to say that new clause 10, which also covers family members of non-EEA nationals, is better drafted, so I will speak briefly in support of it instead. Hats off to the shadow Ministers for getting it right when I have not.

I echo everything said by the hon. Member for Sheffield Central. He is right to characterise this not just as a failure to grant the right to appeal, but as the taking away of the right to appeal currently available to EEA nationals under European law. I remind the Minister that the Home Office statement of intent, published in June last year, said:

“Primary legislation is required to establish a right of appeal for the scheme, but subject to Parliamentary approval, we intend that those applying under the scheme from 30 March 2019 will be given a statutory right of appeal if their application is refused. This will allow the UK courts to examine the decision to refuse status under the scheme and the facts or circumstances on which the decision was based.”

The question is simple: why is that appropriate if there is a deal, but not appropriate if there is no deal? There should be a right of appeal regardless of whether a deal is reached. The distinction is absolutely unjustified.

From the point of view of principle and practice, appeal rights are hugely significant in immigration law. It is about the separation between those who review a decision and the decision makers themselves, and about not allowing the Home Office to mark its own homework, thereby ensuring a fair and independent hearing. It is also about the fact that the Home Office simply gets it wrong far too often. Before the current Prime Minister started her slash-and-burn approach to appeal rights, half of Home Office decisions were being overturned by the tribunal. Administrative reviews and judicial reviews are a sub-standard alternative.

Finally, we have to bear in mind that these decisions will have hugely significant consequences for those individuals affected. If the decisions are wrong, the consequences could be catastrophic. It is a small ask to ensure that they have appeal rights, regardless of whether a withdrawal agreement is reached.