Home Office U-turns on rights of EU citizens who were in UK pre-Brexit

The Home Office has made a significant U-turn on the rights of EU citizens who were in the UK before Brexit.

It is going to reverse a rule it made in August that barred those who mistakenly applied for permanent residency cards after the referendum to make a late application for EU settled status if they were unaware of the specially created immigration scheme.

However, campaigners say the decision must be backed by more explicit wording in guidance to case workers, otherwise EU citizens will end up having to “beg” for their rights to be recognised.

The change follows a series of stories of EU citizens facing devastating consequences, highlighted by the Guardian.

EU citizens living in the UK and Britons living in the EU before Brexit have the lifelong right to remain in the country they were living in under the Brexit withdrawal agreement.

The government launched the digital-only EU settlement scheme (which does not have a card) to document the near 6 million EU citizens in the country. The scheme closed in June 2021, but late applications were considered on “reasonable grounds”.

Problems arose last August in a Home Office crackdown. New rules removed “lack of awareness” of the settlement scheme as a reasonable ground for a late application.

The decision caused significant difficulties for EU citizens, including one Italian restaurateur who had been paying tax in the UK for 21 years but overnight found his bank account frozen by Santander, forcing him to close his business as he could not pay staff or suppliers.

“I’ve done nothing wrong and they just say one day ‘bye, bye’, no explanation, nothing. It’s been horrible,” Massimo told the Guardian.

Campaigners estimate that potentially tens of thousands of EU citizens applied for permanent residency cards after 2016.

Silvana, an Italian tech investor, discovered her permanent residency card was useless when she went to renew the European health insurance card for her daughter before a holiday, only to be told her permanent residency card meant nothing.

Under the Home Office’s August rules, she could have faced removal from the country because a lack of awareness of the EU settlement scheme was no longer a reasonable ground for a late application.

After succumbing to pressure from campaigners and EU citizens, the Home Office has published new guidance to case workers, telling them late applications from those with permanent residency cards “are reasonable grounds” for delays in application to the scheme.

Insiders in the Home Office say the guidance has not been “reversed” but merely “updated” and made clearer.

But lawyers at Bindmans, one of 55 organisations that wrote to the Home Office about the issues caused by the August change in rules, said the “new guidance published on 16 January marks a major U-turn in the government’s position on late applications to the EU settlement scheme”.

Silvana said: “I’m very happy that they are changing the guidelines and that they essentially realising it was a mistake to do this to good citizens who have been here a long time and are contributing to society.”

However, the campaign group the3million described the change as a partial victory, as the updated guidance is not as explicit as it could be.

Instead of stating that late applications from EU citizens with permanent residency cards are allowable, the Home Office gives a convoluted example of someone in such a situation.

“We’re disappointed that the Home Office still does not accept that having an EEA permanent residence card in itself is sufficient evidence for reasonable grounds for applying late, and it also expects people to beg, bend their knee and show remorse for not knowing,” said the interim co-chief executive of the3million Andreea Dumitrache.

“Politicians promised EU citizens would retain their rights after Brexit. This government needs to take responsibility for changes brought in and change this culture of disbelief in the Home Office.”

A Home Office spokesperson said: “More than two years have passed since the main deadline for applying to the EU settlement scheme, which was widely publicised. In line with the citizens’ rights agreements, we continue to accept and consider late applications from those with reasonable grounds for their delay in applying.”

Separately, concerns about the Home Office have been raised in relation to its response to a high court ruling on the EU settlement scheme.

The high court had sided with the statutory body set up to protect EU citizens’ rights, the Independent Monitoring Authority, which claimed it was wrong to remove the employment, residency and healthcare rights of those with pre-settled status (for those in the UK for less than five years before Brexit) if they had forgotten to apply to upgrade to settled status once they were eligible.

In response, the Home Office has given a two-year extension to those with pre-settled status in the belief this would cover any gap for those who forgot to reapply.

Campaigners say this means employers and landlords or banks could interpret this extension as a legally risky temporary status and remove an individual’s rights.

“While the Home Office has been effective in many cases, some citizens face uncertainty, impacting their ability to live, work and raise families in the UK,” said Miranda Biddle, the chief executive of the Independent Monitoring Authority.

• The headline and introduction of this article were amended on 19 January 2024 to more accurately reflect the detail of the government’s decision.