What amendments are being made to the Border Security, Asylum and Immigration Bill?

The Border Security, Asylum and Immigration Bill has completed its committee stage in the House of Commons and report stage will take place on Monday 12 May 2025. The Bill as first introduced has had a couple of amendments at committee stage, both introduced by the government. There are also some proposed amendments by the government for report stage that were published on Wednesday and I have updated this post to look at those too.

Committee stage amendments

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.

Report stage

These amendments have not yet been added to the Bill, I am looking only at those put forward by the government as I do not expect the others to pass (this is of course no judgement on the merits of those amendments, many of which are extremely worthy and should be incorporated into the Bill). So I have used the numbering in the amendment paper, after Report stage a new Bill will be published with these new amendments given proper clause numbers and I will update this post with those then.

Many of these changes have already been trailed in the media or through Home Office press releases, although frankly even I have been struggling to keep straight with what is being done in the Bill and what will be in the White Paper, so it is useful to finally be able to see these.

Expansion of illegal working penalty regime

Amendment Gov NC5 will change the heading “Employment” in the Immigration, Asylum and Nationality Act 2006 to “Employment and other working arrangements”. These are the changes trailed by the Home Office back in March which will extends the penalty regime (and associated need to carry out right to work checks) to worker’s contract, individual sub-contractors, online matching service (this looks like the one which will cover many of the so-called “gig economy” roles) and service providers, all of which are defined in what will be new section 14A to the 2006 Act.

There is also an impact assessment that has been published in relation to this change.

Tribunal targets

The next few amendments were announced by the Home Office last week. The first is Gov NC6 which inserts a new section 86A to the “Appeal to Tribunal” section of the Nationality, Immigration and Asylum Act 2002. Where the person is in receipt of asylum support under either section 95 or 98 of the Immigration and Asylum Act 1999 then the following will apply:

The Tribunal must, except where the Tribunal considers that it is not reasonably practicable to do so, determine the appeal and give notice of its determination to the parties before the end of the period of 24 weeks beginning with the day after that on which the appeal is instituted.

If the Home Office carries on making on poor decisions at the current rate, then it is exceedingly unlikely that it will be reasonably practicable for the First-tier Tribunal to meet this deadline. I think probably my main concern with this one is that it may put inappropriate pressure on the judiciary to push appeals forward even when they are not ready, for example because of difficulties in accessing a lawyer.

The underlying problem here is not slow tribunals, it is the Home Office making poor decisions, an issue that is absolutely exacerbated by the decimation of legal aid, meaning that people are left without the assistance they need to prepare their claims, which does make the Home Office’s job more time consuming and difficult. It is possible for the government to legislate its way out of this problem, but by fixing legal aid, not like this.

Amendment Gov NC7 applies the same target to non-detained deportation appeals. This will apply where at the time the appeal is lodged, the person is not detained, has been convicted of an offence either in or outside the UK, and is liable to deportation.

Expansion of the definition of “particularly serious crime” for refugees

Article 33(2) of the Refugee Convention provides for exclusion from refugee status where a refugee has been convicted by a final judgment of a particularly serious crime and constitutes a danger to the community of that country. This is set out in paragraph 334(iv) of the immigration rules which then point to the definition at section 72 of the Nationality, Immigration and Asylum Act 2002 (construction and application of Article 33(2) of Refugee Convention).

Section 72 defines particularly serious crime as a conviction that leads to a sentence of at least 12 months. The section also states that a presumption that a person constitutes a danger to the community is rebuttable by that person.

New amendment Gov NC8 will amend section 72 to include some new definitions of “particularly serious crime”, to include convictions listed in Schedule 3 to the Sexual Offences Act 2003. I am not sure how many people, let alone refugees, convicted of sexual offences on that list are subject to sentences of less than 12 months and any longer sentences will be caught by the existing provisions. But the point here really seems to be one of political rhetoric, and the ability to put out a press release with the headline “Sex offenders to be stripped of refugee protections”.

Changes to OISC Immigration Advisory Authority

The Bill had already made some changes to the commissioner’s role and amendment Gov 24 adds to those. The Home Secretary is giving herself new powers to amend the definition of “relevant matters” in section 82 of the Immigration and Asylum Act 1999. That definition sets out the type of immigration and asylum work that is restricted to those who are appropriately regulated. Any changes must be made through regulations which must be approved by both Houses of Parliament.

Section 87 of the 1999 Act, relating to appeals against decisions of the commissioner is being amended to allow decisions to take effect even where they are under appeal. This applies to decisions made under paragraph 4A(e) of Schedule 6 to the 1999 Act, which is cancellation of registration as an Immigration Advisory Authority adviser where it is considered that the person is no longer competent or is unfit to provide immigration advice or services.

The cancellation decision can only take immediate effect in two situations. The first is where the commissioner has notified the person in writing that it is considered that they are acting or have acted in a way that creates a risk of serious harm to people seeking immigration advice or services or to the system of immigration control in the UK.

This is defined as abuse of a procedure to do with immigration or asylum (including appeals and judicial reviews) or advising a person to do something which would amount to such an abuse. Separate provision is made for suspension where the commissioner “has reason to suspect” that this is the case. The person must also be notified that the decision to cancel their registration has effect from the time specified in the notice.

The second situation where cancellation can take immediate effect is where the registration has been cancelled because the person has been convicted of an offence involving dishonesty or deception or an indictable offence. Separate provision is made for suspension where a person has been charged with these offences, as well as assisting unlawful immigration under section 25 of the Immigration Act 1971, altering a document under section 26(1)(d), and obstructing an immigration officer under section 26(1)(g).

There is provision in section 84(2)(e) for people to carry out immigration work under the supervision of a person who is appropriately regulated. Amendment Gov 26 sets limits on who can do this, for example a person cannot act under supervision if they have been disqualified or suspended on the new grounds detailed above (risk of serious harm and charged with particular offences).

Amendment Gov 27 provides for the commissioner to issue financial penalty notices in certain situations, including where a person has failed to comply with the code of standards or to assist with investigation of a complaint. Unqualified people can also be issued a penalty notice. The maximum penalty is £15,000 or £2,500 if it is an advertising offence under section 92B. Penalties can be appealed and guidance about the use of the penalty powers must be published.

Amendment Gov 28 is an important one given the widespread concern within the sector about the expansion of fee charging. This was subject to consultation last year and increased fees were resoundingly opposed, with charities in particular extremely concerned about the impact on their finances and their ability to provide advice. The amendment will introduce a new section 93A providing for the Home Secretary to make an order providing for fees to be charged by the commissioner as follows:

• for fees (including fees for the taking of examinations) to be charged in respect of the assessment of a person’s competence to provide immigration advice or immigration services;
• for fees to be charged in respect of a person’s registration or continued registration;
• for fees to be charged for making changes to a person’s registration;
• for fees to be charged in respect of the provision by the Commissioner of training for persons providing or seeking to provide immigration advice or immigration services;
• for fees to be charged in respect of the provision by the Commissioner of, or of access to, training or other material for such persons;
• for fees to be charged in respect of the provision by the Commissioner of events for such persons;
• for fees to be charged in respect of the accreditation by the Commissioner of training or events for such persons;
• for fees to be charged in respect of the provision of advice by the Commissioner;
• for, and in connection with, requiring or authorising the Commissioner to waive all or part of a fee in particular cases.

There is already an advice catastrophe happening within the sector, the last thing the government should be doing is making it worse.

Finally, the complaints scheme is being broadened by amendment Gov 29, the explanatory statement describes this as “This amendment extends the Immigration Services Commissioner’s complaints scheme in relation to who may be the subject of a complaint under the scheme, who may be required to co-operate with the investigation of a complaint and what sanctions may be imposed if a complaint is upheld.”

There is also a separate impact assessment for these changes.

Conclusion

So Monday will bring both report stage of the Bill, and if reports are to be believed, the long awaited white paper. I, for one, am planning a very restful weekend ahead of all of that.

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