EU citizens’ rights group begins legal challenge over Home Office EU Settlement Scheme ‘granted in error’ policy

The3million, an organisation representing EU citizens in the UK, announced last week that it is taking legal action against the Home Office's 'granted in error' policy under which the department says some EU citizens were wrongly granted immigration status under the EU Settlement Scheme.

Last month, the Guardian reported that at least 100 people had been told their status was granted in error, though information obtained by the3million through a Freedom of Information request showed that 95 people were contacted by the Home Office in March alone.

According to the Guardian, the Home Office is sending people a letter that states: "It has come to our attention that you were granted pre-settled status without the evidence required to confirm that you meet the definition of 'relevant EEA citizen' before midnight 31 December 2020, when the UK legally cut ties with the EU. On the basis of the information and evidence that is currently available, it is therefore considered that your pre-settled status was granted in error."

One reported case involved a woman who had Portuguese citizenship by birth but did not hold a Portuguese passport when she applied for pre-settled status. The Home Office later concluded that she had not provided the evidence required to establish her status as an EU citizen before the end of the Brexit transition period.

According to the3million, if the Home Office decides that somebody should not have qualified for status in the first place, it can allow their pre-settled status to expire without giving them a chance to challenge the decision.

The organisation explained: "In this new practice we are seeing, there is no decision, nobody weighing up your circumstances, and there is nothing to appeal. Your status stays valid until the day it expires - and then it is gone, and you are considered to be in the UK unlawfully. Now here is the really worrying bit - this policy is being applied to people where there was no mistake when the original status was granted. The person met the requirements, and they were properly granted status under the EU Settlement Scheme. Many years later the Home Office is now saying the grant was by mistake, even in cases where it was not."

On Friday of last week, the3million announced that it had sent the Home Office a pre-action protocol letter, the formal step that normally precedes a judicial review. The letter gives the Home Office 14 days to respond before the organisation considers taking the case to the High Court.

The3million argues that the policy is unlawful. It said: "We're working with Wilson Solicitors and barristers from Garden Court Chambers to establish that the Home Office cannot sidestep the safeguards of the Withdrawal Agreement simply by letting status expire, or by declaring that someone no longer has rights under it. A decision that takes away rights someone already holds is a decision in substance - whatever the Home Office chooses to call it."

On its crowdfunding campaign page for the legal challenge, the organisation added: "We have spent more than a year on this issue, pressing the government alongside the Immigration Law Practitioners' Association (ILPA) – in correspondence, in briefings to parliamentarians, and through an amendment debated in the House of Lords. We are going to court because correspondence has run its course."

The Home Office told the Guardian last month that people who it judged to have been granted status in error can seek to remain in the UK through other immigration routes. It also said affected people can remain until their pre-settled status expires and can apply for settled status, with appeal rights available if such an application is refused.