(Amended) PLP Briefing on Immigration and Social Security Co-ordination Bill (2019)

The Public Law Project has written a briefing (attached above) for policy-makers making an argument for an amendment to be made to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill currently before Parliament. This amendment will provide for a right of appeal to the First Tier Tribunal (Immigration and Asylum Chamber) against decisions made under the EU Settlement Scheme. This Scheme has two immigration statuses which, if granted, replace the rights of residence enjoyed by EU citizens and their family members after Brexit.

The briefing argues that the system of administrative review which has been added to the Immigration Rules does not guarantee access to justice in this context. Administrative review is a mode of redress internal to the Home Office and lacks the requisite degree of impartiality and independence inherent in an appeal to the Tribunal. Secondly, evidence gathered by the Public Law Project as part of its Brexit, Immigration and Administrative Justice Research Project shows that applicants are less likely to succeed on an application for administrative review than on an appeal to the Tribunal. There is almost a 40% margin between the success rates of the two modes of redress. In this briefing, the Public Law Project is advocating for the following amendment to be made to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill:

When a decision is made under the EU Settlement Scheme in Appendix EU of the Immigration Rules in respect of a person he may appeal to the Tribunal if it relates to a refusal to grant
(a) an application for indefinite leave to remain (settled status),
(b) an application for limited leave to remain (pre-settled status); or
(c) if it relates to an incorrect grant of limited leave to remain when the applicant is entitled to indefinite leave to remain under that Appendix to the Immigration Rules.

Provision of legal aid to make this right of appeal effective is also critical. As we argue in the briefing, this amendment to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill ensures ‘that the state provides recourse to an effective mode of redress when an administrative decision which acutely affects the rights of individuals is made.’

PLP welcomes enquiries on this briefing, (or on the wider Brexit, Immigration, and Administrative Justice Project) from stakeholders with an interest in all aspects of immigration law and policy. Please direct all enquiries to the lead researcher on the Project, Byron Karemba: b.karemba@publiclawproject.org.uk