Recent reports that the Home Office has begun revoking the immigration status of some EU nationals on the basis that it was originally “granted in error” have caused understandable concern among immigration practitioners and those with status under the EU Settlement Scheme (EUSS).
The EUSS was introduced following Brexit to protect the residence rights of EU, EEA and Swiss nationals and their family members who were living in the UK before the end of the Brexit transition period on 31 December 2020. For millions of people, it provided reassurance that they could continue living, working and studying in the UK.
Against that backdrop, reports that some individuals are now being told, years after being granted pre-settled status, that they were never entitled to it raise important questions about legal certainty and fairness.
What has happened?
According to recent media reports, a number of EU nationals have received letters from the Home Office stating that their pre-settled status was granted in error and will be cancelled. In many cases, those affected have lived in the UK for several years and expected to become eligible for settled status after completing five years’ continuous residence.
The Home Office’s position appears to be that these individuals did not meet the eligibility requirements of the EU Settlement Scheme before the relevant Brexit deadline and that their original applications should have been refused.
While the Home Office has powers to revisit immigration decisions in certain circumstances, the prospect of withdrawing residence rights years after they were granted is highly unusual and potentially life-changing for those affected.
Why is this significant?
Immigration status underpins many aspects of daily life in the UK. It affects an individual’s right to work, rent accommodation, access public services and continue living in the country.
Many people granted pre-settled status have made significant personal and financial decisions in reliance on that status, including accepting employment, purchasing property and establishing families in the UK. Understandably, receiving notification years later that their status may be withdrawn is likely to cause considerable uncertainty and anxiety.
The reports also raise wider questions about legal certainty and the extent to which individuals should be able to rely on immigration decisions made by the Home Office, particularly where those decisions have remained unchallenged for several years.
Immigration status underpins many aspects of daily life in the UK. It affects an individual’s right to work, rent accommodation, access public services and continue living in the country.
Wider concerns and scrutiny
The reported revocations have prompted concern among organisations representing EU citizens in the UK, particularly given the potentially serious consequences for those who have relied on their EUSS status for a number of years.
Monique Hawkins, Acting Chief Executive of the3million, has described the impact of the Home Office’s retrospective review as “devastating” for many individuals. The organisation has stated that it is aware of dozens of cases in which people have received letters indicating that their status was granted in error, while expressing concern that the true number of affected individuals may be considerably higher.
Commenting on the issue, Hawkins said:
“People applied to the EU Settlement Scheme in good faith and were granted status by the Home Office years ago. They acted on those decisions in good faith by building their lives in the UK and putting down roots.”
We hear from people who are progressing in their jobs, from those whose children are in schools and have known no other country, and now, five years on, when they apply for settled status, they are being told that it was all a mistake. Imagine building a life somewhere and having it ripped out from under you like this.”
The issue has also raised concerns at the Independent Monitoring Authority (IMA), the statutory body responsible for monitoring the implementation of the citizens’ rights provisions of the EU-UK Withdrawal Agreement.
In a recent statement, the IMA confirmed that it had raised concerns with the Home Office and indicated that the policy may be incompatible with the Withdrawal Agreement. According to Hawkins, residence rights protected under the Withdrawal Agreement should only be withdrawn where it is proportionate to do so. She criticised what she described as the Home Office’s failure to properly apply that principle and called on the department to reconsider its approach.
The Home Office has stated that it has a longstanding policy of not routinely commenting on individual cases. It has, however, indicated that individuals whose EUSS status is found to have been granted in error may be able to remain in the UK through alternative immigration routes. The department has also stated that affected individuals will generally be permitted to remain until their pre-settled status expires and may apply for settled status where eligible. Where any such application is refused, appeal rights may be available.
What does this mean for other EU nationals?
At present, these cases appear to relate to specific circumstances rather than a broader review of all grants of pre-settled status. Nevertheless, the reports are likely to concern many EU citizens who currently hold pre-settled status and are planning to apply for settled status in due course.
Anyone who receives correspondence from the Home Office questioning their status should seek specialist immigration advice promptly. Depending on the circumstances, there may be options to challenge the decision or to pursue an alternative immigration route where appropriate.
Individuals should also retain evidence of their residence in the UK and any documentation submitted in support of their original EUSS application, as this may prove important if their status is questioned.
How can we help?
The EU Settlement Scheme was intended to provide certainty following Brexit and to protect the rights of those who had built their lives in the UK before free movement came to an end.
While it is understandable that the Home Office may seek to correct genuine administrative errors in appropriate cases, any decision to withdraw immigration status years after it was granted should be approached with great care. Such decisions can have profound consequences for individuals who have relied on their status in good faith and organised their lives accordingly.
It remains to be seen whether these cases represent isolated instances or signal a wider change in approach. We will continue to monitor developments closely and provide updates as further guidance and case law emerge.
If you have been contacted by the Home Office regarding your EU Settlement Scheme status, or you are concerned about your eligibility under the Scheme, it is important to seek advice at an early stage. Obtaining specialist immigration support can help you understand your position, assess any risks to your status and identify the most effective course of action.
At Clarkslegal, our experienced immigration lawyers advise individuals on all aspects of the EU Settlement Scheme, including responding to Home Office enquiries, challenging adverse decisions, securing evidence of eligibility and protecting existing immigration status. If you would like to discuss your circumstances, please contact our team for tailored advice and support.
