What amendments have been made to the Border Security, Asylum and Immigration Bill?

The Border Security, Asylum and Immigration Bill has completed its committee stage and a date for report stage has not yet been announced. The Bill as first introduced has had a couple of amendments at committee stage, both introduced by the government.

The main changes relate to the EU Settlement Scheme (this looks like a good change) and an increase in the conditions that can be placed on a grant of limited leave, including the use of electronic monitoring (definitely a bad change). The changes can be seen in this comparison document and I have set out the new clauses in more detail below.

Aside from the below, the only other change was the extent of the Bill as defined at clause 57 was amended to include the Channel Islands as well as the Isle of Man.

Clause 42: EU Settlement Scheme

The first new clause is 42 in the current version of the Bill and relates to the EU Settlement Scheme. This was added at committee stage and the explanation described it as:

This new clause ensures that an EEA or Swiss national or their family member who has immigration leave granted under the EU Settlement Scheme can enforce residency and other rights directly under the withdrawal (or other separation) agreement even if the person, or their family member, was not resident in the UK or the Islands in accordance with Union (or other equivalent) law at the end of the implementation period.

The minister’s explanation to the committee makes things a bit clearer. Essentially it is to do with whether a person was exercising their treaty rights under the Immigration (EEA) Regulations, by either being financially self-sufficient, studying or working, at the time of Brexit. The minister described this group as the “true cohort”. Those who did not meet this definition because they were not exercising their treaty rights at the time, for example because they had lost their job, were described as the “extra cohort”.

The minister explained that the UK’s intention was always to treat both groups the same under the withdrawal agreement and so this new clause means that everyone who holds status under the EU Settlement Scheme will have enforceable rights under the withdrawal agreement, without the need to demonstrate that they were exercising treaty rights at the relevant time. Reference was made to case law having complicated things, hence this change being made.

Clause 43: Conditions on leave and bail

Once the Bill passes, this will amend section 3(1)(c) of the Immigration Act 1971 which sets out conditions that can be applied to a person’s grant of limited leave to enter or remain in the UK. Currently, that includes conditions restricting work, studies, no recourse to public funds, registration with the police, reporting conditions and a residence condition.

The new clause adds the following:

(vi) an electronic monitoring condition (see Schedule 1A);

(vii) a condition requiring the person to be at a particular place between particular times, either on particular days or on any day;

(viii) a condition requiring the person to remain within a particular area;

(ix) a condition prohibiting the person from being in a particular area;

(x) such other conditions as the Secretary of State thinks fit.

The clause also adds a new schedule to the 1971 Act which sets out the electronic monitoring conditions in more detail and clarifying that children will not be subject to electronic monitoring.

The minister explained that the purpose of this clause is essentially to be able to extend immigration bail conditions to people who have permission to be in the UK. The minister said that this clause is to be used against people who do not qualify for asylum but cannot be removed from the UK and so are granted limited leave to remain. In other words, the targets appear to be people on restricted leave.

She said “The powers will be used only in cases involving conduct such as war crimes, crimes against humanity, extremism or serious crime, or where the person poses a threat to national security or public safety. That is a pretty high bar.” However the draft clause does not expressly limit the powers to people in that category and so anyone who has a grant of limited leave to remain could be subject to these powers.

It is also concerning that the Home Secretary will hold a power to set any other conditions on a person who holds leave, as she thinks fit. This is extraordinarily broad and no explanation was provided or debate held at committee stage as to what this may entail or why such a wide power is needed.

Conclusion

The Joint Committee on Human Rights is carrying out legislative scrutiny of the Bill to assess compatibility with international and domestic human rights standards. Hopefully they will give broad powers in clause 43 the scrutiny that it lacked at committee stage, as well as considering the ineffectiveness of electronic monitoring as detailed by both the Home Office and the Independent Chief Inspector of Borders and Immigration. The use of electronic monitoring also risks human rights violations, and the High Court and the tribunal has previously held the monitoring of people on immigration bail to be a violation of their article 8 rights in certain circumstances.

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