Border Security, Asylum and Immigration Bill

Lord Oates Excerpts

Wednesday 5th November 2025 Lords Chamber

[Lord Oates (LD)]

My Lords, I will not repeat the comprehensive arguments my noble friend has so eloquently set out in support of this amendment. I want to focus briefly on the point she highlighted that, by allowing settled status to expire rather than revoking or cancelling it, the Home Office is sidestepping a proportionality assessment and denying the status-holder a right of appeal.

The Home Office says that this is a generous thing to do to give people a bit more time before their status is lost but, as my noble friend has set out, it is in fact letting status-holders slide off a cliff without the withdrawal agreement safeguards. This should not be allowed to happen, fundamentally because the Home Office—extraordinary though it may seem—may be wrong in its assessments that status was granted in error. Regrettably, the Home Office has been known to make mistakes in the past—in fact, frequent mistakes, often with catastrophic human consequences.

This amendment would ensure that, where such errors are made, the victims of those errors are afforded the procedural safeguards that they should be. In Committee, the noble Lord, Lord Hanson, said in reply to me that those whose settled status was lapsed by the Home Office would be

“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”.

These are safeguards that the Minister said

“I hope the noble Lord will find adequate … in both these cases”.—[Official Report, 8/9/25; col. 1186.]

I regret that we do not believe they are adequate because this is not a right of appeal against the decision to allow status to lapse. It is a right of appeal against the refusal of a new application, which means that if the person concerned chooses to appeal, they are challenging a different decision, and the tribunal may well not allow the same arguments to be presented. Pre-settled status could also expire in the meantime, while awaiting appeal on the new application.

In closing, I thank the Minister for his engagement with my noble friend and myself on this issue. But, as he will appreciate from what my noble friend has said, we do not accept that the safeguards he referred to in Committee are sufficient. Therefore, we ask him, first, obviously, to accept this amendment, but if he is not willing to do so, to get the Government to reflect again and come back with a proposal that would meet these concerns.

[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.