Contribution
I am grateful to the noble Baroness, Lady Ludford, for her amendment. I assure her that there is nothing nerdy about putting amendments down in this field. As a fellow nerd on many other topics, I welcome her contribution to the debate.
The amendments, as the noble Baroness has said, are on the important issue of the discussion on the safeguards for loss of status under the EU settlement scheme. I welcome the fact that the noble Baroness, the noble Lord, Lord Oates, and I have had some meetings. I think we have got a position whereby Clause 42 is welcome. I am pleased that they welcome the addition of Clause 42, because it provides legal clarity for EU citizens and their family members with EUSS status who are in scope of the withdrawal agreement, and it is the source of their rights in the UK. I hope, therefore, that they welcome Amendments 81 and 83. These will mean that Clause 42 comes into force on the day of Royal Assent, rather than two months later as was originally planned, so that those rights are guaranteed from when the Bill receives Royal Assent. I will move those amendments in due course.
The nub of the question goes to the nub of the nerdery of the noble Baroness, which we discussed when she introduced her amendments. The EUSS is more generous than the withdrawal agreement requires. As we know, there are two cohorts of EU citizens with EUSS status: the “true” cohort, who are in scope of the agreement because they were economically active in the UK at the end of the transition period on 31 December 2020, and the “extra” cohort, who were resident in the UK at the end of the transition period but did not meet the technical requirements of free movement law. Clause 42 ensures that both cohorts will be treated equally in UK law by providing that all EU citizens and family members with EUSS status will be treated as being withdrawal agreement beneficiaries. This is a significant measure that gives legal effect to what has been the UK’s approach since the start of the EUSS.
Amendment 36 would remove subsection (2)(c). Its effect would be to confer withdrawal agreement rights in the UK on those who do not qualify for them because they do not qualify for EUSS status. Worse, it would mean that pre-settled status granted in error could not be curtailed or allowed to expire, because the withdrawal agreement does not permit rights to be lost on that basis.
The amendment would give such people unwarranted preferential treatment over those whose EUSS application was correctly refused. It would also undermine the integrity of the EUSS system by giving them the same rights in the UK as those of a pre-settled status holder who complied with requirements for that status. Those are outcomes that we cannot accept. A person whose EUSS status has been granted in error will not be in the “true” or “extra” cohort and should not benefit from Clause 42.
None the less, none of this detracts from the proper safeguards against the loss of EUSS status. The noble Baroness is right to emphasise the importance of that issue, as are the stakeholders who have been engaging with the Home Office on this point. Nothing in Clause 42 affects the withdrawal agreement-compliant appeal rights in UK law for the refusal or removal of EUSS status. There is nothing disproportionate about allowing a pre-settled status granted in error to expire after its five-year term, given that the person had no entitlement to that limited leave in the first place.
The noble Baroness and the noble Lord talked about Home Office errors. I would argue that the person will have been given every opportunity to show that their pre-settled status was granted correctly, and will have failed to do so. As with erroneous grants of limited leave in other immigration routes, our approach allows people to stay in the UK with the right to work for the remaining period of that leave.
Importantly, it is also open for the person to reapply for EUSS status, and, if refused, they will have the right of appeal. The noble Lord, Lord Oates, mentioned this. I said this to him in Committee, and I think that I have also written to him and spoken to him about it in our meetings outside the Chamber. It also applies to any family member whose application is refused because their sponsor’s EUSS status was granted in error.
I am grateful to the noble Baroness for returning to this matter. I hope I have set down that those settled rights will exist under Clause 42. In the event of errors, there are rights of appeal, as well as an existing allowance to continue work in that particular period.