Border Security, Asylum and Immigration Bill – Clause 42

Date Legislation considered: 3 June 2025

Date Legislation in force: 2 months after the Act receives Royal Assent

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Explanatory Notes to the Border Security, Asylum and Immigration Bill (“the Bill”) provide that the purpose of the Bill is “to improve UK border security and strengthen the asylum and immigration system by creating a framework of new and enhanced powers and offences that, when taken together, reinforce, strengthen and connect capabilities across the relevant government and law enforcement partners which make up the UK’s border security, asylum and immigration systems.”

This Report is only concerned with clause 42 of the Bill, which was introduced by way of Government amendment New Clause 31 and was agreed at Commons Committee stage on 13 March 2025.

Why is clause 42 necessary?

The IMA has been raising concerns with the UK Government for a long time that someone with rights under the Withdrawal Agreement/EEA EFTA Separation Agreement (“the Agreements”) may be asked to prove that they were living lawfully in the UK at the end of the Brexit transition period (31 December 2020). “Living lawfully” means you were exercising your rights under EU free movement law – for example, by working, being self-employed, studying or being self-sufficient.

The IMA considers that it is unlawful to require citizens who were meeting EU free movement rules, to re-prove that they were living lawfully in the UK as of 31 December 2020. The Agreements mean that EUSS status should be sufficient to demonstrate this for those in scope of them. The IMA is also concerned that, as time goes by, it may become more difficult for citizens to find the relevant evidence, such as payslips to prove that this was the case. This would risk citizens not being able to prove and access their rights under the Agreements.

Because the UK Government decided not to ask EUSS applicants to show that they had been living in the UK lawfully at the end of the Brexit transition period, there is no way of knowing who was living in the UK lawfully then and who was not.

The UK Government had provided assurances, both to the IMA and publicly, that their policy position was to treat all EU and EEA EFTA citizens, and their family members, with EUSS status as though they have rights under the Agreements, and to begin with there were no issues. Court cases like R (IMA) and AT changed this. The case of AT (which was concerned with who the Charter of Fundamental Rights of the European Union (“the Charter”) applied to), led to the Department for Work and Pensions, and some other public authorities, asking pre-settled status holders to prove they were living lawfully in the UK as of 31 December 2020. This was to establish whether they were eligible to access the additional protections of the Charter which the case of AT confirmed were available to protect citizens with pre-settled status who do not have enough money to meet their basic needs, such as food, clothing and accommodation.

What does clause 42 do?

Clause 42 puts into law the UK Government’s commitment to treat all EU and EEA EFTA citizens, and their family members, with EUSS status (except where that status was granted in error) as though they have rights under the Agreements.

It will mean that, if the clause becomes law, EU and EEA EFTA citizens, and their family members, with EUSS status who currently have no rights under the Agreements (because they were not living lawfully in the UK at the end of the Brexit transition period) will be treated as if they do.

Comments

The IMA welcomes the policy objective of clause 42 of the Bill to treat all EU and EEA EFTA citizens, and their family members, with EUSS status as though they have rights under the Agreements. This will mean that no-one who has been correctly granted pre-settled status or settled status should be asked in the future to prove what they were doing at the end of the Brexit transition period. Whilst this does not ‘fix’ the issue, as it is still not possible to distinguish who has rights under the Agreements and who is treated as having those rights, we recognise that the clause seeks to provide a pragmatic solution for citizens and public authorities.

The IMA is grateful to stakeholders and European Commission and UK Government officials for their engagement in relation to the clause. The IMA has been concerned in its scrutiny of the legislation to explore the potential for any unintended consequences of the clause both for current and future generations.

A number of issues are highlighted below, some of which will require ongoing engagement with the UK Government. The IMA will continue to work together with all parties to ensure successful implementation of the clause.

• A – Exclusion of holders of Zambrano/Surinder Singh rights

Zambrano carers [1] and citizens who applied via the Surinder Singh route [2] do not benefit from clause 42.

They do not have any rights under the Agreements. The IMA accepts that it is a matter of policy for the UK Government as to what rights are provided for such citizens in UK law and therefore makes no further comments.

UK Government officials have confirmed that citizens who have been granted status via the Zambrano or Surinder Singh routes are distinguishable from other EUSS status holders, and that their status on the online UK Visa and Immigration account is marked accordingly.

• B – Requirement to have leave to enter/remain under Appendix EU – subsection (2)(a)

To benefit from clause 42, an EU/EEA EFTA citizen or their family member will need to have EUSS status. This means that those EU/EEA EFTA citizens who had but no longer have status will not be protected. In most cases, this makes sense as it would be illogical for someone whose status had been curtailed to be treated as having rights under the Agreements.

The IMA is however concerned that there may be circumstances where someone’s pre-settled status wrongly expires, e.g. where an extension is not applied due to a computer error, or where there is disagreement over whether status has lapsed through long absence from the UK. In such circumstances, citizens who do not have rights under the Agreements will not be protected by this clause, unless and until it is confirmed that they still hold EUSS status.

There is also ongoing litigation (in which the IMA has applied to intervene) concerning the position of pre-settled status holders who subsequently have that leave replaced by leave under the MVDAC, the migrant victims of domestic abuse concession (previously DDVC, the destitute domestic violence concession) or Appendix Victim of Domestic Abuse (VDA).

Currently, the UK Government does not allow a person to have more than one type of UK immigration leave. This means that pre-settled status holders who do not have any rights under the Agreements and who obtain leave under the MVDAC or Appendix VDA to access certain benefits, which are currently unavailable to them, would not benefit from the clause.

Although the litigation is concerned with the position of those citizens who do have rights under the Agreements because they lived lawfully in the UK as at the end of the transition period, the IMA is concerned that subject to the Court’s finding on this issue, there is a risk that there could be a difference here in treatment between those pre-settled status holders who have rights under the Agreements and those who do not.

Whilst the IMA raises the issue in the context of this report, this is a complex issue which goes far wider than this clause. The Home Office have confirmed that their policy intention remains to treat all EU and EEA EFTA citizens, and their family members, with EUSS status as though they have rights under the Agreements, and that they agree that people with rights under the Agreements should be able to access those rights even if they no longer hold EUSS status. The IMA will continue to discuss this clause with the Home Office alongside the litigation.

• C- Requirement to have met the requirements for leave at point of grant – subsection (2)(c)

The IMA shares concerns that have been raised around the potential unintended consequences of this subsection. In particular, that it could lead to other government departments or other public authorities checking whether leave was correctly granted before they accept that EUSS status holders are protected by the clause.

The Explanatory Notes state that “in all cases the Home Office will have decided that the person meets the requirements of the EUSS, and other public authorities will be expected to rely on that decision for as long as the person holds EUSS leave”.

Officials have told the IMA that they are consulting with Government departments around issuing guidance, which will make clear to departments and public authorities that they are to rely on the Home Office’s decision on status.

Officials have also explained that the reason subsection (2)(c) is necessary, is because without it, the Home Office would be unable to remove status in cases where they have incorrectly made a grant in error. This is because the effect of the clause is that removal of status would otherwise only be possible in circumstances provided for by the Agreements, such as criminality or fraud. Officials gave the example of a third country national durable partner who had incorrectly been given pre-settled status in circumstances where they did not hold an EEA residence card and had therefore been living in the UK unlawfully. Officials stated that without this provision they would be unable to curtail the individual’s pre-settled status on that basis and the person would wrongly benefit from rights under the Agreements.

Officials have confirmed that it is not Home Office policy to ‘look behind’ or re-visit status, and that, currently, should it come to their attention that pre-settled status has been granted incorrectly, they will let the status expire, rather than curtail it.

The IMA agrees that the Home Office would be prevented from curtailing pre-settled status on the basis of error without the provision. As with paragraph B above, consideration of Home Office curtailment policy goes wider than this clause and is outside scope of this report. The IMA will continue to discuss this issue with the Home Office, and in particular will wish to understand how citizens in this position can challenge the expiry of their leave and what evidence will be required to do so.

• D – Chen and Ibrahim/Teixeira carers who are incorrectly granted status

Chen [3] and Ibrahim/Teixeira cases [4] already have rights under the Agreements where they hold EUSS status. As such they do not require the protection of this clause.

Stakeholders raised concerns with the IMA that there may be cases where either the caseworker exercised a discretion when granting them status, or where the grant may have been made in error. In such cases it is argued that they may require the protection of the clause.

As explained in paragraph C above, officials have confirmed that there is no policy to ‘look behind’ status. If status has been granted in error, the citizen would have no rights either under the Agreements or under this clause.

In circumstances where caseworkers applied evidential flexibility, it is the Home Office’s view that those citizens will still have rights under the Agreements, because the scope for such flexibility, to reduce administrative burdens, did not change the balance of probabilities threshold applicable to a grant of status under Appendix EU.

• E – Acquisition of permanent residence before 5 years – subsection (5)

In limited circumstances, pre-settled status holders who were living lawfully in the UK at the end of the Brexit transition period and who reach retirement age may qualify for a right to live in the UK permanently in less than 5 years.

The IMA wished to understand how the clause would work for citizens who are protected by the clause.

Officials confirmed that it would work in the same way as for persons who had rights under the Agreements. An example is provided below.

Bruno, a Spanish citizen who holds pre-settled status, has been living in the UK since November 2019. He was homeless until he secured work in January 2021. He reaches retirement age in November 2022. Bruno returns to Spain in 2023. He could be absent from the UK until 2028 without losing his status.

• F – Devolved Governments

The IMA wished to understand what consultation had taken place with the Scottish Government, Welsh Government and Northern Ireland Executive. Whilst citizens protected by the clause should be able to enforce their rights directly against public authorities, consequential amendments may need to be made to devolved legislation. The Devolved Governments may also need to consider the effect of the legislation on any devolved benefits, assistance or support they provide, in particular in relation to how they assess destitution. Cabinet Office officials told the IMA that they are continuing to work with the Devolved Governments.

Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.

Further information about the IMA and guidance on how to report complaints can also be found on the Website.

 

[1] Non-EU citizens who have been granted pre-settled status on the basis that their child/dependent adult, who is a UK citizen, would be forced to leave the UK if they were not granted status. New applications can no longer be made.

[2] A route (now closed) for family members of British citizens who lived with them in the EU, EEA EFTA or Switzerland.

[3] Primary carer of a self-sufficient EU citizen child.

[4] Children of EU citizen workers/former workers where they are in education in the UK; or the primary carer of such a child where requiring the primary carer to leave would prevent the child continuing their education in the UK.

Interim Report Statement of Changes in Immigration Rules HC 217

Date Legislation considered: 12 October 2024

Date Legislation in force: 8 October 2024 in respect of the changed to Appendix EU

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Immigration Rules (“the Rules”) are statements by the Secretary of State as to how she will  exercise her power to regulate immigration. 

The Statement of Changes make several changes to the Immigration Rules, not all of which are  relevant to the EU Settlement Scheme (“EUSS”).  

The detailed rules for the EUSS are contained in Appendix EU 

The EUSS enables EU, EEA EFTA and Swiss citizens living in the UK by the end of the transition  period on 31 December 2020, and their relevant family members to obtain UK immigration status  (either pre-settled status or settled status) to live in the UK.

The main changes relevant to the EUSS and the work of the IMA are as follows:

Appendix ETA National List

The Statement of Changes introduced Appendix ETA National List which extends the requirement  to obtain an Electronic Travel Authorisation (‘ETA’) to eligible EU and EEA EFTA citizens.    

The ETA Scheme was first announced in a Statement of Changes in March 2023. An ETA is a digital  permission to travel to the UK. Home Office Guidance can be found here.  

EU and EEA EFTA citizens and their family members, with a visa or with status under the EUSS, are not required to obtain an ETA to travel to the UK.  

Automatic conversion from pre-settled status to settled status

Paragraph EU4 of Appendix EU has been changed to make provision enabling the Secretary of State  to automatically convert a grant of pre-settled status to settled status without a valid application having been made, where the Secretary of State is satisfied that the requirements for settled status  are otherwise met. These changes are part of a package of measures introduced by the Home  Office following the High Court’s decision in R (Independent Monitoring Authority for the Citizens’ Rights Agreement v Secretary of State for the Home Department

Definition of ‘required date’

The definition of ‘required date’ in Annex 1 to Appendix EU has been changed to require a joining  family member to apply to the EUSS within three months of their first (not latest) arrival in the UK  since the end of the transition period, or later where there are reasonable grounds for their delay. 

Curtailment of pre-settled status  

Annex 3 to Appendix EU has been changed to enable the Secretary of State to curtail a grant of  pre-settled status (subject to a right of appeal) for helping another person after the end of the  transition period fraudulently to obtain, or to attempt to obtain, entry clearance to or leave to enter  or remain in, the UK. 

Other changes to the Rules relevant to the EUSS include:  

  • Provision applying the procedural provisions in Annex 2 to Appendix EU when considering  whether an individual granted pre-settled status continues to meet the eligibility  requirements;  
  • Provision enabling a child who was resident in the UK before the end of the transition period,  and who has turned 21 since the end of the transition period, not to have to meet a  requirement of dependency on their parents in their application for EUSS status; and
  • Simplification of the requirements for family members of EU and EEA EFTA citizens with a  retained right of residence when applying for status under the EUSS after the death or  divorce of the EU or EEA EFTA citizen.

The changes made by the Statement of Changes are summarised in the Explanatory Memorandum presented to the UK Parliament alongside them.

Comments

From 2 April 2025, anyone visiting the UK who does not already have UK immigration status or a  visa will be required to obtain an ETA before travelling to the UK.  

The IMA is discussing with the Home Office the impact this may have on citizens with a pending  valid EUSS application, and an update will be provided once this engagement is concluded. 

The IMA is also continuing to discuss the change to the ‘required date’ for joining family members  to apply for status under the EUSS. Whilst the IMA acknowledges that the guidance on ‘reasonable grounds’ for making a late application may serve to mitigate the effect of the change in some  circumstances, it is concerned that the change is incompatible with Article 18 WA/Article 17 SA.  The IMA’s view is that the time limit for joining family members to make an application under the  Agreements is only engaged when they arrive in the UK and seek to reside by virtue of their  relationship as an immediate family member of the sponsor in exercise of their rights under the  Agreements. The Home Office does not share this view.  

Finally, the IMA is concerned that the change to the curtailment provisions which allows the Home  Office to curtail status in circumstances where an individual has not engaged in fraud in relation to  their own application to the EUSS – but has done so in respect of an application made by another  person – is not compatible with Article 20(3) WA/Article 19(3) SA (which refer to A35 CRD). The  IMA’s view is that in cases where the PSS/SS holder is a ‘facilitator’ or ‘third party’ and does not

gain any advantage in terms of his own residence, A35 will not apply. The Home Office does not  agree, and IMA officials are continuing to discuss the issue with the Home Office. 

Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint  through the IMA Portal.  

The IMA also encourages any EUSS applicant, who has experienced any difficulties travelling to the  UK, to tell us about their experiences via our dedicated inbox at travel@ima-citizensrights.org.uk 

Further information about the IMA and guidance on how to report complaints can also be found on  the Website.

Statement of Changes in Immigration Rules Presented to Parliament on 10 September 2024

Date Legislation considered: 12 October 2024

Date Legislation in force: 8 October 2024 in respect of the changed to Appendix EU

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Immigration Rules (“the Rules”) are statements by the Secretary of State as to how she will  exercise her power to regulate immigration. 

The Statement of Changes make several changes to the Immigration Rules, not all of which are  relevant to the EU Settlement Scheme (“EUSS”).  

The detailed rules for the EUSS are contained in Appendix EU 

The EUSS enables EU, EEA EFTA and Swiss citizens living in the UK by the end of the transition  period on 31 December 2020, and their relevant family members to obtain UK immigration status  (either pre-settled status or settled status) to live in the UK.

The main changes relevant to the EUSS and the work of the IMA are as follows:

Appendix ETA National List

The Statement of Changes introduced Appendix ETA National List which extends the requirement  to obtain an Electronic Travel Authorisation (‘ETA’) to eligible EU and EEA EFTA citizens.    

The ETA Scheme was first announced in a Statement of Changes in March 2023. An ETA is a digital  permission to travel to the UK. Home Office Guidance can be found here.  

EU and EEA EFTA citizens and their family members, with a visa or with status under the EUSS, are not required to obtain an ETA to travel to the UK.  

Automatic conversion from pre-settled status to settled status

Paragraph EU4 of Appendix EU has been changed to make provision enabling the Secretary of State  to automatically convert a grant of pre-settled status to settled status without a valid application having been made, where the Secretary of State is satisfied that the requirements for settled status  are otherwise met. These changes are part of a package of measures introduced by the Home  Office following the High Court’s decision in R (Independent Monitoring Authority for the Citizens’  Rights Agreement v Secretary of State for the Home Department. 

Definition of ‘required date’

The definition of ‘required date’ in Annex 1 to Appendix EU has been changed to require a joining  family member to apply to the EUSS within three months of their first (not latest) arrival in the UK  since the end of the transition period, or later where there are reasonable grounds for their delay. 

Curtailment of pre-settled status  

Annex 3 to Appendix EU has been changed to enable the Secretary of State to curtail a grant of  pre-settled status (subject to a right of appeal) for helping another person after the end of the  transition period fraudulently to obtain, or to attempt to obtain, entry clearance to or leave to enter  or remain in, the UK. 

Other changes to the Rules relevant to the EUSS include:  

  • Provision applying the procedural provisions in Annex 2 to Appendix EU when considering  whether an individual granted pre-settled status continues to meet the eligibility  requirements;  
  • Provision enabling a child who was resident in the UK before the end of the transition period,  and who has turned 21 since the end of the transition period, not to have to meet a  requirement of dependency on their parents in their application for EUSS status; and
  • Simplification of the requirements for family members of EU and EEA EFTA citizens with a  retained right of residence when applying for status under the EUSS after the death or  divorce of the EU or EEA EFTA citizen.

The changes made by the Statement of Changes are summarised in the Explanatory Memorandum presented to the UK Parliament alongside them.

Comments

From 2 April 2025, anyone visiting the UK who does not already have UK immigration status or a  visa will be required to obtain an ETA before travelling to the UK.  

The IMA is discussing with the Home Office the impact this may have on citizens with a pending  valid EUSS application, and an update will be provided once this engagement is concluded. 

The IMA is also continuing to discuss the change to the ‘required date’ for joining family members  to apply for status under the EUSS. Whilst the IMA acknowledges that the guidance on ‘reasonable grounds’ for making a late application may serve to mitigate the effect of the change in some  circumstances, it is concerned that the change is incompatible with Article 18 WA/Article 17 SA.  The IMA’s view is that the time limit for joining family members to make an application under the  Agreements is only engaged when they arrive in the UK and seek to reside by virtue of their  relationship as an immediate family member of the sponsor in exercise of their rights under the  Agreements. The Home Office does not share this view.  

Finally, the IMA is concerned that the change to the curtailment provisions which allows the Home  Office to curtail status in circumstances where an individual has not engaged in fraud in relation to  their own application to the EUSS – but has done so in respect of an application made by another  person – is not compatible with Article 20(3) WA/Article 19(3) SA (which refer to A35 CRD). The  IMA’s view is that in cases where the PSS/SS holder is a ‘facilitator’ or ‘third party’ and does not

gain any advantage in terms of his own residence, A35 will not apply. The Home Office does not  agree, and IMA officials are continuing to discuss the issue with the Home Office. 

Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint  through the IMA Portal.  

The IMA also encourages any EUSS applicant, who has experienced any difficulties travelling to the  UK, to tell us about their experiences via our dedicated inbox at travel@ima-citizensrights.org.uk 

Further information about the IMA and guidance on how to report complaints can also be found on  the Website.

Illegal Migration Act 2023 (Amendment) Regulations 2024

Date Legislation considered: 2 August 2024

Date Legislation in force: 23 July 2024 (subject to regulation 1(3))

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Explanatory Memorandum to the Illegal Migration Act 2023 (Amendment) Regulations 2024 (“the Regulations”) states that the Regulations amend “the date of application of the Duty to Remove in section 2 of the Illegal Migration Act 2023. As a result, instead of the Duty to Remove having retrospective effect, meaning that it applies to any person who arrived on or after the day on which the Act received Royal Assent (20 July 2023), the date of application now refers to the day on which section 2 will come into force.”

Whilst section 2 of the Illegal Migration Act 2023 (“the Act”) was never brought into force, it prevented the processing of some asylum claims made on or after 20 July 2023.

The Explanatory Memorandum further states that the Regulations also make “consequential amendments to other provisions of the Act to link them to the date from which the Duty to Remove applies.”

One of those consequential amendments is to remove the ban on granting lawful immigration status or citizenship to persons who arrived on or after 7 March 2023 and who meet the conditions of the Duty to Remove in section 2 (see Regulation 3).

Comments

Whilst the IMA raises no issues of concern with the Regulations, it considers that there may be some EU and EEA EFTA citizens who were permitted entry into the UK  on or after 7 March 2023 and who were given immigration status under Appendix EU before 23 July 2024 (when the Regulations came into force) who nevertheless met the conditions of the Duty to Remove in section 2 of the Act.  In such circumstances, the Act would have operated to prohibit the Home Office from granting such status. This could cause doubts about the validity of the immigration status granted to this cohort. For those citizens with rights under the Withdrawal Agreements, they will be able to rely on their rights which are directly effective (i.e. they do not need domestic legislation to be enforced) notwithstanding any such prohibition. Home Office officials have confirmed that no EU or EEA EFTA citizens were refused status because of the prohibition.

Whilst the IMA acknowledges that the prohibition has been removed, it is concerned where the directly effective nature of the Withdrawal Agreement is relied upon to override conflicting domestic laws. Officials at the Home Office have however provided assurance to the IMA that this issue will be resolved at the earliest legislative opportunity. The IMA will monitor this legislation in accordance with its legislation monitoring work.

UPDATE: On 30 January 2025, the Border Security, Asylum, and Immigration Bill (“the Bill”) was introduced to the House of Commons. Clause 38(2) provides that section 8AA of the Immigration Act 1971 as inserted by section 30(3) of the Act is to be treated as never having been in force. The effect of this is that any leave which was granted when the Home Office did not have the power to do so will be valid. If this provision becomes law, the IMA raises no issues of concern. The IMA will be reporting separately on any other relevant provisions with the Bill.

Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.

Further information about the IMA and guidance on how to report complaints can also be found on the website.