Border Security, Asylum and Immigration Bill

Lord Oates Excerpts

Committee stage
Monday 8th September 2025 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I will just intervene on this interesting exchange between the noble Lord, Lord Pannick, and my noble friends on Amendment 203A. The question this raises—I say this really as a question—is: is it not the case that people in this country who want our borders strengthened and immigration controlled may perhaps consider that convicted offenders from overseas who are not British citizens should not enjoy the same rights, privileges and protections after a conviction as a UK citizen should?

I understand that we are bound by international regulations and international law. None the less, as my noble friend has said, there have been derogations from the law, not least by Germany, which has in fact withdrawn legal aid from those appealing. The French Government, in defiance of their own courts, very often deport overseas offenders. Therefore, although it is a very persuasive intervention by the noble Lord, Lord Pannick, there is a wider context in which this group of amendments is being spoken to.

[Lord Oates (LD)]

My Lords, I will speak very briefly in support of the comments by the noble Lord, Lord Pannick, and shall give one example as to why automatic removal regardless of the circumstances is so wrong. The noble Lord, Lord Harper—whom I was lucky to work with many years ago in the coalition Government and am glad to see here—raised a point that a number of other Lords have also mentioned: people who have come to this country and have been afforded protection by it should understand the consequences if they breach the law. That is an understandable point to make.

However, I will give one example. Take a small child who came to the UK, whose parents became British citizens and who had assumed that they were in fact a British citizen, who had committed a crime and was sentenced to prison—and, under this amendment, was therefore subject to automatic removal—but the national referral mechanism competent authority later found that they were a victim of modern slavery for the purpose of forced criminality. That person would have no right of appeal, none of the circumstances of the case would be considered and they would be deported automatically to a country that they have never been to and where people speak a language that they do not understand. It would be wholly wrong for that to happen without any mechanism for a court or tribunal to consider it. I very strongly support the noble Lord, Lord Pannick, and oppose these amendments.

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Moved by

[Lord Oates]

142: Clause 42, page 36, line 27, leave out paragraph (a) and insert—
“(a) P was granted leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules, which has not been cancelled, curtailed or revoked,”Member’s explanatory statement
This amendment ensures that all persons granted residence status in the UK under the EUSS, which has not been cancelled, curtailed, or revoked by the Secretary of State or an Immigration Officer, benefit from this Clause if they are not already a beneficiary of the Withdrawal Agreement.

[Lord Oates (LD)]

My Lords, I am speaking on behalf of my noble friend Lady Ludford, who unfortunately cannot be in her place today. In doing so, I pay tribute to her tireless advocacy for EU settled status holders. I also thank the3million for the brilliant work that it does representing EU citizens in the UK and for its support and briefing.

The amendments in this group seek to protect the rights of holders of EU settled status and ensure that the procedural safeguards provided for under the withdrawal agreement apply to them all. I should say at the outset that we welcome Clause 42, but we believe it would be significantly improved if the Government took on board the key elements of our amendments.

The problem that Clause 42 seeks to address arises from the creation of two distinct groups of EU settled status holders: those whom the Government have determined the true cohort, who had permanent resident rights or were exercising treaty rights at the end of the implementation period, and the extra cohort, those who were not exercising treaty rights but who were granted settled status based on simple residence at the end of the implementation period. The Government did not tell settled status holders which cohort they were in as they never tested for true cohort membership when granting settled status. Regardless of cohort, the grant of settled status states specifically that it is issued under the withdrawal agreement, even though the Home Office argues that that is not the case for the extra cohort. Nevertheless, the Government claimed that as they did not intend to distinguish between the two cohorts, the existence of two cohorts had no material impact. Subsequently, the outcome of litigation required that some government services could be accessed only with proof that the person concerned was part of the true cohort. This requires them to prove the exact legal status of their residence on 31 December 2020, and this is increasingly difficult as time marches on.

Clause 42 seeks to legislate to end this distinction between the true and extra cohorts, and to fulfil the Government’s commitment that they would not treat the cohorts differently. It does that by granting a separate route to withdrawal agreement rights for the extra cohort via this Bill. In intention it is therefore extremely welcome. However, there are elements of the clause that undermine the Government’s own objective and create further difficulties. It is these difficulties that our amendments seek to address.

First, Amendment 144 would delete Clause 42(2)(c), as this is foundational to the issue. The subsection gives the Home Office the power to remove settled status without affording status holders the procedural safeguards provided by the withdrawal agreement where it believes that settled status was granted in error, even if that error was the Home Office’s.

This is wrong, for several reasons: first, because it is wrong for the Government to remove status from someone who applied in good faith without committing fraud or misrepresentation of any kind and who has been building their life in the UK over many years. If the Home Office has made an error in the original decision, it is one that it needs to live with rather than visiting that error on others and potentially causing huge disruption and misery.

Secondly, it is wrong because it allows the Government to execute this decision without applying the procedural safeguards which exist to ensure that status is not unjustly removed, and which are provided under the withdrawal agreement. This is because, where the Home Office thinks status is granted in error, it does not issue a decision to remove the status; if it did, people would have procedural safeguards, as the Home Office would need to have applied a proportionality assessment and the status holder would have a right to appeal.

Instead, what the Home Office does is to allow the status to expire. This sidesteps a proportionality assessment, which would otherwise be required, and denies the right of appeal. The Home Office says that this is a helpful thing to do, to give people a bit more time before their status is lost, but in fact it is letting status holders slide off a cliff without any of the withdrawal agreement safeguards. This must not be allowed to happen, fundamentally because the Home Office may well be wrong in its assessment that the status was granted in error.

Does the Minister accept that there is no right of appeal on the specific decision to allow a person’s status to expire on the basis that the pre-settled status was granted in error? Is a withdrawal agreement-compliant proportionality assessment made before a decision is taken to allow status to expire? If it is not applied, does he accept that the Government will be in breach of the withdrawal agreement should it transpire that they wrongly asserted that pre-settled status was granted in error? The fundamental issue here is protecting people’s rights to safeguards under the withdrawal agreement.

Thirdly, the subsection could also invite any government department or public body to revisit a grant of settled status to decide whether the individual can rely on withdrawal rights by assessing a person’s legal position on 31 December 2020. That is precisely what the clause is supposed to avoid.

I turn to the other amendments in this group. Amendment 142 would ensure that

“all persons granted residence status in the UK under the EUSS, which has not been cancelled, curtailed, or revoked”

benefit from Clause 42—not only those with extant settled status. This is to ensure that rights under the withdrawal agreement are maintained for those whose status is varied—for example, if they have been forced to give up settled status to access protection as victims of domestic abuse—those whose pre-settled status has expired because of a failure of the automatic extensions and those whose settled status has been deliberately expired rather than revoked.

Amendments 143 and 145 would address the situation for those granted settled status under EU derivative rights; that is, those rights which were established outside EU directives through case law, which are known as Zambrano, Ibrahim/Teixeira and Chen rights. Zambrano rights holders are not protected under the withdrawal agreement, and these amendments would maintain that situation, but they would ensure that Ibrahim/Teixeira and Chen rights were covered by Clause 42.

In conclusion, these amendments would clarify the law. They would give certainty and reassurance to settled status holders and would ensure that the Government’s stated intentions had effect.

Finally, before I sit down, I want to raise with the Minister a related issue of serious concern about the lack of transparency of the Home Office over the effectiveness of its digital immigration systems, which directly impact settled status holders. On 22 July, I tabled a Written Question asking how many reports had been made through the “Report an error with your eVisa” online form in each of the past 12 months. The Minister replied on 30 July, saying:

“The information requested is not currently available from published data and could only be collated and verified for the purposes of answering this question at disproportionate cost”.


The idea that the eVisa IT system cannot generate a report of how many error forms it has received for anything above a minimal cost is, to my mind, absurd. In any event, this is critical information for policymakers and those who scrutinise them. If officials and Ministers do not have this data, how can they know how their systems are functioning?

Perhaps they do know the answer, and they just will not tell us. In replying to a similar question in a letter to the 3million group, the Home Office gave a different answer. It did not claim that the data could be provided only at disproportionate cost. In fact, it stated that it intended to publish the requested data on the volume of error web form requests in due course. We all know what “in due course” means, or, more precisely, we do not know what it means at all.

I hope the Minister will address this issue in his answer and tell us when the data will be published. We cannot have faith in ministerial assurances that errors in the eVisa system are not a significant problem if the Government are not able or prepared to share the data. I look forward to hearing the Minister’s response to this issue and to the points raised on the amendments. In the meantime, I beg to move.

[Lord German (LD)]

My Lords, it is a pleasure to support these amendments in the names of my noble friends Lady Ludford and Lord Oates. We support Amendments 142 to 145, as they would safeguard the rights of individuals granted status under the EU settlement scheme, ensure the proper application of the withdrawal agreement, prevent arbitrary removal of status, and uphold procedural safeguards.

It is worth just stating what those safeguards are. There are four of them: first, the Home Office must notify the person of the decision that their status will be removed; secondly, the Home Office must explain the grounds on which that cancellation decision was taken; thirdly, the Home Office must take proportionality into account before removing their status; and, finally, the individual would have a right of appeal against the decision to remove their status.

Amendment 142 would ensure that

“all persons granted residence status in the UK under the EUSS, which has not been cancelled, curtailed, or revoked”

benefit from Clause 42 even if they are not already direct beneficiaries of the withdrawal agreement. This is crucial for some groups because there are those whose EUSS status might be varied; for example, to access protection as victims of domestic abuse under a different immigration route. It clarifies that these individuals should be deemed still to have directly effective withdrawal agreement rights.

Amendments 143 and 145 focus on those who obtain resident status by the various routes under the EUSS. While the Home Office suggests that these individuals are already part of what is called the “true cohort” of beneficiaries, there may be a minority whose grants were based on caseworker discretion and would not otherwise fall under this cohort. Amendments 143 and 145 ensure that such individuals who have built their lives in the United Kingdom in good faith are also included within the personal scope of the withdrawal agreement without undermining the Government’s overall policy intention to exclude certain other routes.

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[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.

Amendment 142 withdrawn.