Lead: A landmark legal challenge has been launched against the UK government’s Home Office over its alleged failure to comply with the Brexit Withdrawal Agreement (WA), following a wave of cases in which almost 1,500 EU nationals were told their pre-settled status was an ‘error’—a move critics say undermines fundamental rights guaranteed by treaty.
The campaign group the3million lodged formal court papers at England's High Court on Friday, asserting that the Home Office unlawfully revoked or restricted key rights granted under the EU Settlement Scheme. These rights include the ability to live, work and rent property without restriction within the United Kingdom post-Brexit. The claim centers on over 1,400 individuals who had previously been awarded pre-settled status—a legal designation allowing long-term residence in the UK after Brexit—but were recently informed they had made a mistake during their application process.
Background: Pre-Settled Status and Its Legal Framework
The EU Settlement Scheme was established as part of the Brexit withdrawal agreement to ensure that citizens from European Union countries could remain legally resident in the UK following the end of the transition period. Under this scheme, applicants are granted either 'pre-settled' or 'settled' status based on criteria such as continuous residency, evidence of ties to the country, and citizenship documentation.
Pre-settled status is designed for individuals who have lived in the UK before 31 December 2020—before formal Brexit—and allows them to stay indefinitely under specific conditions. Crucially, it does not require a full reapplication process; instead, it provides stability through recognition of prior residence and integration into British society. The original implementation of these decisions was guided by evidential flexibility, allowing caseworkers discretion when assessing claims due to gaps in official records or personal circumstances.
The Home Office’s Policy Shift on Italian Citizenship
A central point of contention involves how the Home Office has treated citizens with Italian ancestry under jus sanguinis (the principle that citizenship is inherited from one's parents). According to public statements released during 2026, several individuals—particularly Brazilians whose ancestors were Italian—were initially denied pre-settled status because they did not present an Italian passport at application time. Instead, applicants only provided a declaration stating their ethnic origin as 'Italian' without formal documentation.
In October 2026, however, the Home Office issued a policy reversal: it acknowledged that evidence of Italian descent through bloodline alone should be sufficient for recognition if properly substantiated. This change came after multiple complaints and advocacy efforts by groups such as the3million, which highlighted how public institutions remained locked down during the pandemic, preventing access to official documents needed to prove lineage or citizenship.
The shift in position is significant because it contradicts earlier assertions made by officials who claimed these individuals were not entitled under EU law due to lack of an Italian passport at application time. The new guidance suggests that ancestry-based claims may now qualify independently—especially when supported by genealogical records, birth certificates from Italy, or other verifiable family history evidence.
Cases That Sparked Public Outcry and Legal Action
One case involves a 33-year-old Brazilian-Italian engineer based in London since 2018. Initially informed he would be denied pre-settled status—notably stating his wife (a Brazilian national) could remain but he himself could not—the individual later raised concerns with the Home Office after receiving correspondence suggesting an error had been made. After public pressure and intervention through advocacy channels, this decision was reversed within weeks of being reported to the3million.
Another notable example is a woman working as a healthcare professional in England’s National Health Service (NHS), who has also pursued her PhD studies in dentistry at University College London. She described how the notification from the Home Office that she had been granted status 'in error' caused significant personal disruption—leading to uncertainty about whether she would be able to continue practicing medicine or maintain housing stability.
In both cases, applicants were not given any opportunity for appeal prior to the revocation of their rights. The lack of procedural safeguards directly contradicts provisions outlined within Article 23 and Section 10(4) of the Brexit Withdrawal Agreement—which require fair assessment procedures and a right to challenge decisions affecting fundamental rights such as residence and employment eligibility.
Legal Arguments: Breach of Procedural Safeguards
The statement of claim filed by the3million argues that removing pre-settled status without due process constitutes an unlawful breach of international obligations under both treaty law and common law principles. Specifically, it asserts:
- A failure to provide a clear mechanism for appeal or review;
- No independent evaluation of whether removal was proportionate given the individuals’ long-term integration into UK life;
- An absence of transparency about how decisions were made—whether based on substantive compliance with WA requirements, domestic legal interpretations (Appendix EU), discretionary caseworker judgments, or genuine error.
The group contends that many applicants cannot determine why their grants were issued—or denied—because no official record explains which criterion governed each decision. This ambiguity creates uncertainty and undermines trust in both administrative processes and state commitments under international agreements.
Historical Precedent: Past Legal Challenges to Home Office Policies
This is not the first time the UK government has faced judicial scrutiny over its implementation of Brexit-related policies. In 2022, the Independent Monitoring Authority (IMA)—a statutory body established to oversee compliance with the Withdrawal Agreement—sued the Home Office for imposing conditions requiring EU citizens to reapply for settled status after their pre-settled period expired.
The IMA argued that such requirements placed individuals at risk of losing access to housing and employment opportunities simply because they had lived in the country long-term without formal renewal processes. The High Court ultimately ruled in favor of the IMA, concluding that these imposed conditions were unlawful under both public law principles and obligations derived from the WA.
These earlier rulings set a precedent suggesting that administrative actions affecting fundamental rights must be subject to rigorous scrutiny—not only on factual accuracy but also on procedural fairness and proportionality—especially when those decisions impact people’s livelihoods or ability to build lives within another nation.
Criticism of Evidential Flexibility Undermines Accountability
Lawyers representing the3million have pointed out an apparent contradiction: while the UK government initially adopted unusually generous standards in granting pre-settled status—with minimal documentation required—the current policy shift appears designed to reverse these benefits. This inconsistency raises concerns about whether earlier leniency was based on genuine compliance with treaty obligations, or merely administrative convenience.
The claim notes that many applicants were granted status through processes involving 'evidential flexibility'—a term used by caseworkers to justify accepting incomplete records such as affidavits, family statements, or oral testimony instead of official documents like passports or birth certificates. While this may have facilitated faster processing during peak demand periods post-Brexit, it also introduced significant risk: individuals could not later verify if their eligibility stemmed from meeting actual legal thresholds or simply from discretionary judgment.
Statements From Advocacy Leaders and Legal Experts
Monique Hawkins, acting CEO of the3million, emphasized that the Home Office’s current stance reflects a fundamental misreading of its responsibilities under international law. She stated:
"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."
Hawkins further noted that while the government had previously acknowledged errors in policy, such as those involving Italian descent cases, it refused to revise or clarify its approach despite sustained advocacy since early 2025. She concluded: "This is a simple matter of providing proper due process. Despite our advocacy efforts since early 2025, the Home Office refused to change course, so we have no option but to challenge the policy in court."
Legal Objectives and Potential Outcomes
The lawsuit seeks several judicial outcomes:
- To declare that the ‘grant in error’ policy violates both the Brexit Withdrawal Agreement and principles of common law regarding procedural fairness;
- To order the excision or removal of any provisions from official government publications that support the erroneous revocation of pre-settled status;
- To establish a transparent mechanism for individuals affected by such decisions to appeal future rulings with access to independent review.
If successful, this case could reshape how UK authorities interpret obligations under international agreements—particularly concerning non-discrimination, due process, and accountability when altering rights granted through administrative processes.
Government Response and Ongoing Proceedings
A spokesperson for the Home Office declined comment on Friday, stating: "We cannot comment as proceedings are ongoing." This silence has drawn criticism from civil society groups who argue that transparency is essential during legal challenges involving public welfare issues. The absence of a direct response may suggest either an attempt at deferral or concern over potential reputational damage tied to past policy inconsistencies.
The case remains active in the High Court with no scheduled hearing date yet announced. However, given its scale—spanning hundreds of individuals across diverse backgrounds—and its implications for future immigration governance, it could become one of the most significant post-Brexit judicial cases affecting EU citizens’ rights within the UK.