The Home Office is being sued for alleged breach of the Brexit withdrawal agreement after stripping almost ۱,۵۰۰ EU citizens of their full rights to live in the UK.
Campaign group the۳million lodged papers at the high court on Friday after several cases emerged of EU citizens who were granted pre-settled status to remain in the country after Brexit but were told recently those decisions were an “error”.
According to the statement of claim, the Home Office decision to remove all or some rights from citizens granted pre-settled status was made without “procedural protections” required under the Brexit withdrawal agreement (WA).
These protections include a right of an appeal and an assessment of “proportionality”, which would establish whether removal of rights was appropriate given the EU citizens in question built their lives in the UK on the basis of the Home Office’s original decision.
Among the people affected by the Home Office policy was a ۳۳-year-old Brazilian Italian engineer who has been in London since ۲۰۱۸. He was originally told that he should not have settled status: he could stay but his Brazilian wife could not, a decision that was reversed in the last few weeks after objections were raised.
Another EU citizen who raised her case with the۳million is a woman working in the NHS and studying for a PhD in dentistry. She has said the Home Office’s notification had “turned her life upside down”.
In October ۲۰۲۶, the Home Office accepted that where a person provides evidence of their Italian citizenship, together with evidence that this was obtained through jure sanguinis, they would now accept that this person was an Italian from birth.
Previously it told a number of Brazilian Italians they were granted status “in error” because they had not presented an Italian passport at the time of their application, merely stating they were Italian citizens.
Monique Hawkins, acting CEO of the۳million, said: “The Home Office is putting the cart before the horse. It denies people the safeguards the withdrawal agreement guarantees – a fair assessment and a right of appeal – because it says they are ‘clearly’ not covered by the agreement. That’s like saying someone doesn’t need a trial because they’re ‘clearly’ guilty.”
She said the Home Office U-turn on jure sanguinis Italian nationals showed it could change its policy when its errors were exposed.
The high court papers said: “This is a simple matter of providing proper due process. Despite our advocacy efforts since early ۲۰۲۵, the Home Office refused to change course, so we have no option but to challenge the policy in court.”
The campaign group is asking the court to declare that the “grant in error policy is unlawful, by breach of the WA and/or common law” and make whatever order is necessary to “excise the offending parts of the published policy”
Many complained that although they were jure sanguinis (direct and unbroken Italian relative), they could not get a passport because the public institutions were in lockdown during the coronavirus pandemic.
Lawyers have also argued that the apparent generosity of the UK, which minimised the evidence required by any EU citizens applying to stay after Brexit, “compounded” the current Home Office policy of removing rights.
The unlawfulness of the policy is compounded by the nature of the EU settlement scheme itself. The UK deliberately implemented a scheme that, in a number of respects, operated more generously than the minimum requirements of the WA.
Hawkins said: “Grants were also made through processes involving evidential flexibility and, in some cases, discretionary decision-making.
“As a result, many status holders cannot know, and are given no means of knowing, whether their status was granted because they satisfied the substantive requirements of the WA, because they satisfied the requirements of Appendix EU as a matter of domestic law, because a caseworker exercised evidential flexibility or discretion in their favour, or because the grant was genuinely erroneous.”
Several cases have come to light of Brazilians who have Italian parents or grandparents. Under Italian law these citizens are Italian by birth but the Home Office alleged they were not because they did not have an Italian passport at the time.
This is not the first time the Home Office has been sued over its implementation of the withdrawal agreement.
In ۲۰۲۲ it was taken to court by the statutory watchdog set up to ensure the Home Office implemented the withdrawal agreement properly.
The Independent Monitoring Authority, backed by the۳million, accused the Home Office of putting EU citizens at risk of losing their rights to work or rent a home by forcing them to reapply for settled status once their pre-settled status expired.
High court judges ruled in the IMA’s favour concluding the conditions imposed by the Home Office were unlawful.
A spokesperson for the Home Office said they could not comment as proceedings were ongoing.
