Border Security, Asylum and Immigration Bill

Debate between Lord Oates and Lord Hanson of Flint

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, as indicated in Committee, we have little issue with Clause 42. If the Government believe that it is also in line with the withdrawal agreement, we do not have concerns about it standing part of the Bill.

I listened to the argument of the noble Baroness, Lady Ludford. While I understand her concerns, we are satisfied that Clause 42 does not undermine the protections for European Union, European Economic Area and Swiss nationals and their family members who have leave to enter or remain in the UK granted under the EU settlement scheme. The government amendments in this group simply alter the commencement of Clause 42 so that it comes into effect on Royal Assent. Given that we have little issue with this clause, we are satisfied that its commencement on Royal Assent is not inappropriate.

I will only ask one question of the Minister. Can he explain whether he expects Clause 42 to increase administrative burdens on the Home Office and, if so, what steps have been taken to increase administrative capacity?

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

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.

[Lord Oates (LD)]

Can we have clarity on this? My understanding is that there is no right of appeal against the Home Office decision that an error was made. Instead, there is the right to make another application, and then appeal if that is refused. As I set out, that is a very different thing.

[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.

Border Security, Asylum and Immigration Bill

Debate between Lord Oates and Lord Hanson of Flint

Committee stage
Monday 8th September 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord, Lord Oates, for moving the amendments on behalf of himself and the noble Baroness, Lady Ludford. He will know that we had some meetings in relation to this, and I have tried to engage on behalf of the Home Office as the answering Minister here, but, as he realises, the Minister who has been dealing directly with this issue was until recently one Minister in the Commons and is now another Minister in the Commons. But we will return to that in due course.

First, I want to set out the purpose of Clause 42. As the noble Lord said, Clause 42 is designed to provide legal clarity for those EU citizens and their family members with EU settled status who are in scope of the withdrawal agreement that it is the source of their rights in the UK. This has been achieved very simply by confirming in UK law under Clause 42 that any EU citizen or their family member with EU settled status will be treated as being a withdrawal agreement beneficiary. Where they do not already do so, they will have directly effective rights under the withdrawal agreement as brought into domestic law by Section 7A of the European Union (Withdrawal) Act 2018. This gives legal effect to what has been the UK’s approach since the start of the EUSS.

Because the EUSS is more generous than the withdrawal agreement requires, there are, as the noble Lord has mentioned, two cohorts of EU citizens with EUSS status: there is the “true cohort” who are in scope of the withdrawal agreement because, for example, they were economically active or self-sufficient in the UK as per EU free movement law at the end of the transition period on 31 December 2020; and there is 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. Although the UK has sought, through both the previous Government and this Government, to treat both cohorts the same, certain court judgments since the end of the transition period, as the noble Lord mentioned, mean that some differences in treatment have emerged. The whole purpose of Clause 42 is to address that anomaly.

Amendment 142 in the noble Lord’s name permits all those granted EUSS status to benefit from the clause where that status has not been cancelled, curtailed or revoked. This would mean, for example, that Clause 42 would benefit a person who was granted EUSS status but has since committed a serious criminal offence, for example, and has been deported from the United Kingdom. In my opinion, that would not be an appropriate outcome, but it would be the effect of the amendment that the noble Lord has tabled.

In respect of those with pre-settled status under the EUSS who obtain another form of immigration leave, I can confirm that this amendment is not needed because the clause as drafted covers that point. We have listened carefully to representations with stakeholders on these issues and we have decided that, where a person with pre-settled status obtains other leave, such as the domestic abuse route, they will retain their pre-settled status. That will enable them easily to show that they still have withdrawal agreement rights, should they need to do so.

The noble Lords spoke to Amendments 143 and 145 together, and I will deal with them together, if I may. These are concerned with those with EUSS status based on certain derivative rights under EU law. Those individuals include people who are the primary carer of a self-sufficient EU citizen child or with a child in education in the UK where the EU citizen parent has been a worker here and their primary carer. Both these categories are in scope of the withdrawal agreement and are included in the EUSS on a basis which reflects the relevant EU law requirements. Complex though this is, a person granted EUSS status on that basis will be in the “true cohort” and will have the withdrawal agreement rights in the UK. The amendments are therefore unnecessary.

That is so regardless of whether the caseworker applied evidential flexibility in granting EUSS status. Such flexibility—for example, not requiring missing evidence to be provided and therefore minimising administrative burdens on the applicant—can be applied only where the caseworker is already satisfied on the balance of probabilities that the relevant requirements of the EUSS rules are met.

Finally, Amendment 144 would remove subsection (2)(c) from Clause 42. This would mean that we were granting withdrawal agreement rights to people in the UK who do not qualify for EUSS status, which would not be right. Subsection (2)(c) protects the integrity of the EUSS and of Clause 42. It ensures that, to benefit from Clause 42 and therefore have withdrawal agreement rights, the person was correctly granted EUSS status. This amendment is not needed to ensure that the status of a person in the “true cohort”, or by virtue of this clause in the “extra cohort”, can be removed only by applying the procedural safeguards contained in the withdrawal agreement.

The noble Lord mentioned the issue of a decision to cancel, curtail or revoke EUSS status. It carries a right of appeal under Regulation 3 or 4 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, and nothing in Clause 42 changes that. I hope that will give him the reassurance that he seeks. A person whose EUSS status has manifestly been granted in error will not be in the true or extra cohort and should not benefit from Clause 42.

Safeguards are still in place in such cases. Where the Home Office comes across the case of EUSS status granted in error, the individual is contacted and provided with a reasonable opportunity to show that their grant of EUSS status was correct. If they cannot do so and they have pre-settled status, our current approach is to allow them to remain in the UK for the remaining period of their leave. They are also informed that they can reapply to the EUSS. If such an application is made and refused, it will give rise to a right of appeal. Any family member application that is refused because the sponsor was granted EUSS status in error also attracts a right of appeal. Safeguards that I hope the noble Lord will find adequate are therefore in place in both these cases.

We have had a discussion and I hope the noble Lord can look at what I have said. Again, this is always a complex area. I have read deliberately from my brief so that the issue is, I hope, clarified by what I have said, and he can read Hansard in the morning and look at what I have said to date. The purpose of Clause 42 is to clarify the very points that the noble Lord has concerns over, and that is why I hope he will withdraw this amendment today. If he remains unhappy then obviously he has the opportunity to return to this issue on Report.

The noble Lord asked about data. I answer in this House for the department, but I often answer for other ministerial colleagues who are looking at these issues in detail. I will revisit the questions that the noble Lord put to me on data sharing, and I will make sure that, well before Report, I get him a fuller response to clarify the issues that he has raised, because I am unable to give him a definitive answer on that today. While I might wish to do so, it is best if I examine that in the cold light of day and drop him a note accordingly. With that, I hope he will not press the amendments.

[Lord Oates (LD)]

I thank the Minister for his response and for taking time to meet me and my colleagues to discuss these matters, as he referred to. I am grateful for his clarification regarding Amendments 143 and 145, which will give welcome reassurance.

I am not entirely convinced that the response he has given to Amendment 144 addresses all the concerns that we have raised, although I will certainly study Hansard carefully in case I have missed some of those issues. While it is true that someone whose status expires because the Home Office has determined that it was granted in error has a right to subsequently apply again, and if that is refused then they can appeal, that is not an appeal against the decision that the original status was granted in error, so that remains a cause for concern. As the noble Lord, Lord Deben, said, it is particularly in cases where the Home Office has made an error that we want all the safeguards to exist.

Having said that, I am grateful to the Minister for his response. We will look at it and decide how to proceed from here. In the meantime, I beg leave to withdraw the amendment.