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

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) Order 2024.

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.

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.

When this order was debated in the Commons, the Minister there said that it

“will make border checks much easier by broadly aligning the duration of permitted absence before leave lapses for pre-settled status holders. This means that Border Force officers will no longer need to undertake a complex consideration of whether an individual has acquired a withdrawal agreement right of permanent residence … We want this change to be delivered as seamlessly as possible”.—[Official Report, Commons, Fourth Delegated Legislation Committee, 30/4/24; col. 6.]

I am sure we all want that but, as I have said, these things are pretty complicated. That statement from the Minister seemed to indicate that the Home Office is perhaps rather more complacent than the3million, which has dealing with an awful lot of complicated situations under its belt.

As I said, I emailed the Minister’s office yesterday to ask that the position on the permanent residence point is made very clear on GOV.UK. The previous debate went into a situation where, as I remarked then, consultation could have avoided an unintended consequence. I hope the Minister can give an assurance about the consequences of this being entirely understood and, most importantly, being made clear to all who need to know.

I should have said that we support the order.

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.

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.

Motion agreed.

Committee adjourned at 5.24 pm.