Border Security, Asylum and Immigration Bill

Baroness Ludford Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

Moved by

[Baroness Ludford]

36: Clause 42, page 38, line 1, leave out paragraph (c)
Member’s explanatory statement
This amendment removes a provision that allows a person’s EU Settlement Scheme status to be removed without applying procedural safeguards contained in the Withdrawal Agreement.

[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.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

The argument I put is that the person will have been given every opportunity to show that their pre-settled status was granted correctly. If there was an error from the Home Office, there is a period in which they can make that argument. But if we get to a position whereby staying in the UK with the right to work for the remaining period of leave happens, the suggestion of the noble Lord, Lord Oates, that people reapply for EUSS status can happen and can be considered. That is a reasonable proposal. We may disagree, but I think it is a reasonable way forward and it gives fairness to the system as a whole.

The noble Baroness’s compromise suggests a number of things, and my argument is that it is not necessary. Procedural safeguards are not dealt with in Clause 42; they are contained in the citizens’ rights appeal regulations. They implement the position in Article 21 and they stand irrespective of this clause. The compromise that she offered is effectively available under the rights in the citizens’ rights appeal regulations.

I may not have satisfied the noble Baroness and the noble Lord. The noble Lord, Lord Davies of Gower, asked whether there are any administrative costs and burdens from this. I do not have an assessment in front of me, but I will take that question away and examine it. I realise that we will have passed this clause by the time he gets the letter, but I hope he can hold us to account on that issue. I will give him further detail at a later stage. I hope that the House can agree to our Amendments 81 and 83 in due course and that the noble Baroness will withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, I was remiss not to welcome Amendments 81 and 83. I thank the Minister for those, but I am afraid I am disappointed with what he said. To be clear, my noble friend Lord Oates’s intervention was surely right: I think the Minister made a slip of the tongue and suggested that there was an appeal right if status was left to expire. If the Home Office took a decision to cancel, revoke or curtail the status then there would be a right of appeal under Article 21 of the withdrawal agreement. Our objection is about the Home Office workaround—I called it that earlier, but I could think of a much ruder term. What the Home Office is doing is, frankly, sneaky. It is saying, “We’re not going to give you any right to appeal or apply a proportionality assessment. We’re just going to let it fade out, and if you don’t like that scenario you can make a whole new application and go through all the hassle and, no doubt, expense and trouble of that. Then, if we turn you down, you can go through an appeal right”.

We are talking about letting the status just expire, and the Minister is saying that the individual concerned should have known that the Home Office had perhaps granted it in error. How are they supposed to know that? That knowledge is within the bowels of the Home Office. The individual does not necessarily know that. The Home Office is holding all the power in this situation. It may not even say, “We think we granted this in error”; it just lets it expire and leaves the person stranded. That does not seem a very honourable thing to do. I am not saying that about the Minister, because I like him very much, but I do not think it is a very reputable thing for the Home Office to do. It is a great pity that the withdrawal agreement did not cover this situation. It covers fraud, but it does not cover where the status is allegedly granted in error.

Let us not forget that we are talking about people here: we are talking about EU citizens who ought to have a clear right of appeal and to make a case under an appeal procedure, rather than just having it slide away from them because the Home Office may think—and it may only think—that it granted it in error or that the applicant made an error. They are left hanging there and it will never be established whether it is true because the Home Office says, “Oh, you can just make another application”.

I am afraid I still think that is an unsatisfactory situation, and it is a pity that the impasse continues. I had hoped that there might be some flexibility to provide some creative wording so that the Home Office could maintain its position on the withdrawal agreement that Article 21 did not apply and that it would find some workaround in favour of EU citizens who might be subject to this black hole treatment. I am disappointed that the Minister cannot provide that offer, but he does not, so there we are. I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I strongly support these amendments and agree with all the speakers, particularly my noble friend Lord German. We on these Benches have consistently supported the right to work, and I did so as a Member of the European Parliament. As my noble friend no doubt knows, the reason that so many European countries have a provision on the right to work is that it is in one of the EU’s asylum directives that the UK opted out of—or technically did not opt in to, not least because it included a right-to-work provision. That is a shame.

This does not make sense. We are in the worst of all worlds. Everybody knows that there is considerable work in the black economy. I think I caught on the radio this morning that there was a new BBC investigation into a criminal network that is recruiting people to work in mini-marts, as it called them, which I suppose are small local supermarkets. Journalists can find these people. We do not seem to have much labour market enforcement or inspection—the Government must forgive me if they do not agree with that—but it is amazing that journalists can find out about this while it goes on seemingly largely unchecked.

We have a reputation for being a country where asylum seekers and irregular migrants can work, which has a considerable amount of truth in it. But these people are open to exploitation and are not paying tax and national insurance, so we get the bad reputation without the benefits, either to the state and the taxpayer or to the individuals concerned, of them working above board in the regular economy.

Successive Governments have dug themselves into a hole on this, which is completely unnecessary. I think it was the right reverend Prelate who quoted the polling statistics. The public are ahead of the Government on this. They can see the perfect sense in allowing people to support themselves, and therefore reduce the burden on the public purse, whether from asylum hotels or the frankly miserable amount that these people get to sustain themselves.

My last point reinforces what others have said. Some people wait for years for their asylum claim to be determined. I remember one case I had when I was an MEP, dealing with a doctor from Syria, I think—it could have been somewhere else in the Middle East. He had waited nearly four years for his claim to be determined and, in the meantime, his personal resources and his whole professional standing, as well as his status within his family—he came from quite a patriarchal system—had utterly deteriorated. Even if he were granted asylum the very next day, it would have needed a great deal of effort by him personally, with support from training organisations and the NHS, to get him usefully into working as a doctor. It really does not make any sense whatever.

If the barrier to this is that the Government think that people should not work, I say: they already work, but in an irregular system. There is a great public perception that there is very little enforcement of the law, whether it is street crime, fly-tipping or whatever. People just have a sense that criminals are getting away with it. Here, there is a chance to crack down on the criminals by allowing people to be regularised into the mainstream economy to support themselves and for their dignity and their humanity to be recognised.