Baroness Ludford (LD)

My Lords, Amendment 36 is in my name and that of my noble friend Lord Oates. My noble friend expertly presented in Committee on 8 September our several amendments to Clause 42, explaining that, overall, we welcome this clause because of its intention to end the distinction that was created between the so-called true and extra cohorts. I will not explain that for those not in the know, as it is a bit nerdish. Anyway, we welcome the clause because it fulfils the Government’s commitment that they would not treat the cohorts differently by granting a separate route to withdrawal agreement rights for the extra cohort. Its intention is therefore extremely welcome, as these Benches have consistently said. The problem I want to focus on now is that the Government have maintained, in debates and in correspondence, both with Members of the House and with the NGOs the3million and the Immigration Law Practitioners’ Association, whom I thank for its consistent support and briefing, that Clause 42, namely the enjoyment of Brexit withdrawal agreement rights, cannot apply to those whose leave was allegedly granted in error. Clause 42(2)(c) gives the Home Office the power to remove EU settled status or pre-settled status without affording status holders the procedural safeguards or proportionality test which the withdrawal agreement mandates, where it is contended that settled status was granted in error. What that really means is where the Home Office has come to believe that the status was granted in error, because obviously it does not always know. The first problem is that withdrawal agreement safeguards are denied even if the error was by the Home Office, not the individual. The second problem is that the Government are creating a chicken-and-egg situation. The Home Office does not know whether the withdrawal agreement applies, yet it will not extend the safeguards in that agreement because it thinks that it does not apply. It is a slightly head-banging situation, but that is it. While it is true that someone genuinely granted status in error is not a withdrawal agreement beneficiary, those of us supporting Amendment 36 contend that the process of establishing that the status was granted in error, and then removing the status, must be compliant with the withdrawal agreement. Let us think of the comparison with fraud. Status can be removed where someone obtained that status under the EU settlement scheme by fraud, with the result that they are not a withdrawal agreement beneficiary. However, they need to have a withdrawal agreement-compliant process before their status is removed. Article 21 of the withdrawal agreement has to apply for those who are alleged to have committed fraud when applying for status and, in those cases, it is also ultimately, after due process, agreed that the person was not in scope of the withdrawal agreement. It seems unacceptable to us that Article 21 will not apply to cases where the individual does not commit fraud, but instead the Home Office alleges that either it or the person made a mistake several years ago. By contrast with the fraud situation, the withdrawal agreement says nothing about removing status granted in error, which is one reason why this sort of space exists. The Home Office objection to removing subsection (2)(c) from Clause 42 is that it would result in that person being treated as a withdrawal agreement beneficiary. It appears to think, for reasons which are not entirely clear, that this would mean that the Home Office could not remove their status at all. Home Office policy and practice is that, when it thinks that someone’s status is granted in error, it will simply let it expire—to fall off a cliff—rather than cancel, curtail or revoke the status via a decision that would entail procedural rights, including a proportionality assessment and a right of appeal. When it falls off a cliff, there are no rights and there is no due process. Allowing the status to expire is a workaround to avoid due process, and one that frankly does not carry a huge amount of integrity because, if leave was indeed cancelled, curtailed or revoked instead of left to expire, safeguards would apply. It is the word of the Home Office against the individual’s when it says that someone’s status was granted in error. The Home Office can make mistakes: it can be wrong in thinking that someone’s status was granted in error. We are only asking for due process in all cases where the Home Office says that status was granted in error. Those entitled to withdrawal agreement procedural safeguards must receive them. This would ensure that those safeguards apply when the Home Office thinks that a person did not meet requirements when in fact they did. That is the chicken and egg: we just do not know in advance. The Home Office response suggests infallibility in Home Office decision-making: we know this does not exist. The Home Office does not provide any due-process safeguards should there be error on its part. This fails to reflect the realities of Home Office decision-making. The Home Office position incorrectly regards as due process those opportunities for what it calls engagement to prove that status was correctly granted. This is insufficient. It does not amount to due process and it is not what the withdrawal agreement requires. In fact, due process demands a right of appeal against the decision to let leave expire, and a proportionality assessment in case the Home Office is in fact wrong to think someone was granted status in error. If the belief of the Home Office is right, it will win the appeal, and status can be taken away. This is not about people granted status in error indefinitely keeping it, along with all other withdrawal agreement rights. It is simply about not infringing the procedural rights potentially secured by the withdrawal agreement. The Government’s approach means that, by the time the Home Office is proved wrong, it is too late and the withdrawal agreement has been breached. By removing subsection (2)(c), Amendment 36 says that everyone—including those granted status in error—should be deemed to be a beneficiary of the withdrawal agreement, so they get the protection of Article 21 procedural rights. Now we face an impasse, in so far as the Government have refused to allow these procedural safeguards to apply to the alleged error scenario. They seem to be saying, “We can’t do that because, if you deem these cases in law to be full and proper beneficiaries of the withdrawal agreement, then we can’t take their status away at all, because the withdrawal agreement does not provide for status being lost in the case of status granted in error”. This can be regarded as a somewhat unhelpful argument and I happen to think it is rather full of flaws. However, the3million and ILPA have suggested a compromise, which I hereby submit. If subsection (2)(c) is left in Clause 42, so that those granted status in error are refused treatment as full withdrawal agreement beneficiaries, a new paragraph dealing with the precise situation could be added. This would provide that the law at least confers a minimum set of withdrawal agreement-compliant procedural safeguards, so as to ensure that Home Office action to permit status to expire, when it contends that it was granted in error, is procedurally safe. A new paragraph could be inspired by Article 15, and Chapter 6 of Directive 2004/38, which, as all noble Lords will know, is the free movement directive. The provisions of that directive are the ones cited in Article 21 of the withdrawal agreement. Knowing the genius of parliamentary counsel, it should be possible to do something along these lines: something which is sui generis, inspired by Article 21 and designed for this specific situation. I hope the Minister can tell me that he will try to do something along these lines in the interests of fairness, justice and respect for the spirit of the withdrawal agreement and our relationship with EU citizens, even if he still declines to accept Amendment 36 —although, obviously, prize number one would be the Minister telling me that he accepts Amendment 36.