the3million is ready to take the government to court over a Home Office practice: deciding there was a mistake in the initial grant of status, then simply allowing the status and rights of EU citizens and their family members to fall off a cliff - with no decision, no proportionality assessment and no right of appeal. 

In many cases the Home Office is actually wrong to say there was a mistake! So people whose status was properly granted are now fighting not to lose it - this is a clear breach of the Withdrawal Agreement.

People shouldn’t have to pay for Home Office mistakes. 

The problem

Millions of EU citizens made the UK their home before Brexit, and under the EU Settlement Scheme we were told our rights would be protected. For a growing number of people that promise is being broken.

The Home Office has begun telling people that the status it granted them years ago was apparently granted by mistake - that they apparently never qualified in the first place. Nobody is accused of lying. It is simply that a caseworker looking at the same papers today would reach a different conclusion. And when that happens, the Home Office does not take the status away: it just lets the status run out instead.

That seemingly technical difference is the whole problem. If the Home Office decides you were correctly granted status but have since stopped qualifying, it has to write to you, hear your side, weigh up whether taking your status away is proportionate to your circumstances, and give you a decision you can appeal. If it decides you never qualified, you get none of that. 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. 

In the House of Lords last November, Baroness Ludford described the Home Office letting someone's status "simply ... expire - to fall off a cliff" as a practice that is "frankly, sneaky". Baroness Ladford made it clear that "when it falls off a cliff, there are no rights and there is no due process." 

The Independent Monitoring Authority - the watchdog set up after Brexit to oversee citizens’ rights - has told the Home Office that this policy may be incompatible with the Withdrawal Agreement, and that the people affected are not given a clear and direct right of appeal.

The government has not accepted the criticism. The practice continues, and it is happening to more people.

Who this is happening to

The Home Office has told us in writing that these are cases of "manifest" and "clear-cut" error - a caseworker misreading a date, that sort of thing. That is not what our evidence shows. We have now documented a significant number of cases, most of which only surfaced because the person did exactly what they were supposed to do and applied to upgrade their status from pre-settled to settled status. Applying is what exposed them.

Citizenship that existed all along. One group of cases turns on whether someone was an EU citizen on 31 December 2020. People who did not hold an EU passport in 2020, but later obtained documents showing they had held that nationality from birth, are now being told they were never eligible for status under the EU Settlement Scheme.

"I did not conceal any information when I applied for pre-settled status - I wrote everything in my application. The Home Office had the relevant facts, and granted me pre-settled status. […] Had I known that the Home Office considered me ineligible under the EU Settlement Scheme, I would have made very different decisions about my future."

An applicant who did everything asked of them. Others were granted status as a dependent relative without an EEA document. The Home Office are now saying that this EEA document was required, but it was never asked for at the time.

"The Home Office granted me pre-settled status in 2020 without flagging any issues with my documentation at the time. This gave me a false sense of security that my status was valid, only for it to be used as grounds for refusal years later."

A family split - because the Home Office revisited the sponsor’s grant of status. A family member applies to join their relative in the UK and is refused, because the Home Office has gone back and re-examined their sponsor's status. The family member can appeal their own refusal, but the sponsor can appeal nothing, splitting families apart.

"After I was granted settled status, we applied for the rest of my family. My children were granted status quickly. My wife's application was refused - the Home Office now says it made a mistake in granting my status, and is going to review my children's status too. We never lied during the process."

Our legal challenge

We are bringing a legal action to establish that the Home Office cannot avoid the safeguards of the Withdrawal Agreement by letting pre-settled status expire, or by declaring that someone no longer has Withdrawal Agreement rights. A conclusion that removes rights someone already holds is a decision in substance, whatever the Home Office chooses to call it.

If we win, the Home Office will have to do what it does in every other case: weigh up what it means for the person before taking their rights or status away, and give them a right of appeal if it goes ahead. We are working with Wilson Solicitors LLP and barristers from Garden Court Chambers - but we need your help to make it happen.

Why we need your support

Taking the government to court is expensive, but justice must not depend on wealth or privilege. the3million is a not-for-profit with no resources set aside to cover these costs, so we are asking for your help.

Your donations go directly towards our own lawyers' fees, the costs risk associated with bringing litigation, and court fees. We will be seeking a cost capping order to limit our exposure to the government's costs if we are unsuccessful. If we lose, your contributions will help cover our own lawyers' costs, at discounted rates, and the government's. If we win and the government covers our costs, any unused funds will go towards the3million's campaigning for migrants' rights - as they would if the case could not proceed.

Initial target: £5,000. Stretch target: £30,000.

Our track record

the3million is the leading grassroots organisation representing EU citizens in the UK. Since 2016 we have won court cases and changed policy, including significant changes to the EU Settlement Scheme. 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.

Stand with us

What is at stake is bigger than the people who have already received one of these letters. It is whether the government can put itself beyond challenge by the simple device of not making a decision.

The Home Office made the mistake. The people paying for it get no decision, nobody weighing up what it means for them, and no right of appeal.

⚖️ We have the law on our side. Now we need the resources to fight.

Join us. Donate today. Share this campaign. Help us defend the rights of EU citizens and uphold the rule of law in the UK.

* the3million uses 'EU citizens' as shorthand for EU, EEA and Swiss citizens who were resident in the UK before 31 December 2020, and their family members (of any nationality) with derived rights.