Suella Braverman should notice the Independent Monitoring Authority’s worth

The government has done something unusual. It has reversed course and accepted a court decision without appealing it and agreed instead that it would comply.

Before Christmas the Home Office lost a judicial review brought by the Independent Monitoring Authority (IMA), the body that the UK agreed to set up as part of the EU Withdrawal Agreement, to protect the rights of EU/EEA citizens who had moved to the UK when it was an EU member. The judicial review was about how the Home Office proposed to treat the over two million citizens who had “pre-settled status” because they had not reached the five year residence qualification to get full settled status.

The Home Office had proposed that if those with pre-settled status failed to apply to change to settled status before they reached the end of their five year qualifying period, they would lose not only their right to apply but also their pre-settled status and be regarded as illegal immigrants. The High Court agreed with the IMA that the Home Office’s policy was a breach of the UK’s commitments under the Withdrawal Agreement. The Home Office’s knee jerk reaction to losing the case was to announce that it would appeal. However, this week the department said it would not proceed with that appeal.

The Independent Monitoring Authority has saved the government from a policy own goal

The Home Office has never made a convincing case for its proposed policy. Inevitably, the most likely people to be caught out would be the old, the illiterate and the vulnerable – a lot of hard cases. In practice, it was unthinkable that the Home Office would devote lots of time and effort to deporting “illegal” EU citizens living in the UK.  There would be a string of hard cases – and those hard cases would jeopardise relations with EU countries.

It would also make it much harder for the UK to stand up for UK citizens who find themselves on the wrong side of authorities in other EU countries which did not automatically grant rights post-Brexit. There is a drip feed of stories coming through of British citizens who have failed to comply with the letter of requirements in the countries in which they live and face deportation back to the UK. Those citizens are having to look to the EU Commission to intervene with EU-27 national governments on their behalf.

The Independent Monitoring Authority has been more willing to challenge the government than might have been expected

The government was obliged to set up the IMA – but it was in charge of its establishment and appointments. The appointed chair was a former Conservative MEP, Sir Ashley Fox. In his pre-appointment hearing he appeared to be willing to cut the government quite a lot of slack, and he was quizzed over his continuing links to the Conservative party. At this point it was not clear that the IMA would be prepared to stand up to the government when it looked as though it was not upholding its commitments to EU citizens.

However, while the recent court case is the highest profile intervention that the IMA has made, it is still actively encouraging complaints from EU citizens who feel their rights are not being observed or being made difficult to exercise. Its website lists a wide range of complaints that it is investigating and their current status. It is not a complaint resolution body but is there to identify systemic issues – for example it has just launched a review of whether the rights of children in care and care leavers are being properly protected.

The experience of the IMA highlights the value that a Migrants Commissioner could have added

EU/EEA citizens are lucky – they have the IMA to intervene on their behalf. But the IMA’s ability to highlight concerns to the government and the public is similar, in some respect, to the role that would have been performed by the Migrants Commissioner proposed by Wendy Williams in her Lessons Learned exercise after the Windrush Scandal. But while that recommendation was accepted by Priti Patel as home secretary, her successor, Suella Braverman, has dropped the idea. Being forced to backtrack by the IMA is unlikely to make the idea any more palatable to Home Office ministers – but if they cast forward and think of the potential headaches from which it has saved their successors, maybe they should reconsider.