FAQ

The Home Office has sent me a letter saying I was granted pre-settled status in error. I’ve been given 14 calendar days respond to their letter and provide evidence. Can they do this? What should I do? I’m really worried.

If you have pre-settled status under the EU Settlement Scheme (EUSS), the Home Office would have granted it on the basis that you were eligible for it. 

You could have been eligible in one of the following ways:

• you are an EU, EEA or Swiss citizen who was living in the UK before 31 December 2020.
• you are an eligible family member of an EU, EEA or Swiss sponsor who was in the UK by 31 December 2020. You would have needed to provide evidence of your family relationship, and in certain cases proved your dependency on your sponsor. For some kinds of family relationships you would have needed to provide a ‘relevant EEA document’.
• not breaching the suitability criteria - such as having criminal convictions above a certain threshold.

The Home Office is now saying they think your status was granted in error, and that you were not actually eligible for the scheme at all. For example, if they think:

• that you were not an EU/EEA/Swiss citizen on 31 December 2020 (saying you only acquired the citizenship after that date); or
• that you only arrived in the UK on 1 January 2021 or later; or
• (if granted status as a family member) that your sponsor was not an eligible sponsor, or that the family relationship was not an eligible family relationship, or that you did not have a ‘relevant EEA document’ when you should have had one. 

But I gave them all the evidence they asked for at the time! 

At the start of the EU Settlement Scheme, the Home Office needed to grant status to millions of people in a relatively short time period. Home Office caseworkers are likely to have made mistakes, and granted pre-settled status to some people who were not eligible for it, and/or did not ask for the correct pieces of evidence. Originally, when the Home Office granted pre-settled status they envisaged it would expire after five years. The Home Office may have thought that if they made some mistakes in initially granting pre-settled status to someone, that person would be unable to apply for settled status once their pre-settled status expired, so would either need to leave the UK or apply for a different type of immigration status.

However, after the Home Office lost a legal case in the High Court (see this FAQ for more details), they were forced to make changes to the EUSS so now pre-settled status cannot simply expire. Indeed, the Home Office is now automatically extending people’s pre-settled status by five years (previously two years) shortly before it is due to expire.

This means that the Home Office is now beginning to look at ways in which it can take pre-settled status away from people who should not have been granted it, as described above.

So why have I received this letter now?

We are beginning to see this happen in for example the following situations:

• Someone is applying for status under the EUSS as a joining family member - it appears the Home Office is possibly taking the opportunity to re-examine the original EUSS eligibility of the applicant’s sponsor, and so may send that sponsor an email/letter asking for evidence that they were properly eligible for, and still entitled, to their EUSS status.
• Someone with pre-settled status is applying to upgrade for settled status now that they have been living in the UK for five years. Again, it appears the Home Office might be re-examining whether the person was eligible for EUSS status when they were originally granted it. So before making a decision on whether to grant them settled status, the Home Office writes to the pre-settled status holder asking for evidence of their circumstances around the original grant date.

We also concerned that when the Home Office starts operating their policy of curtailing people’s status for having broken their continuity of residence, they may also look at whether they think their status was originally granted in error. 

Can they do this? If they made a mistake years ago why should I lose my status?

the3million considers it unfair to take someone’s status away who applied for it in good faith and supplied all the evidence they were asked to provide. If someone applied to the EUSS using fraud or deception, there are provisions in the Withdrawal Agreement to remove status granted as a result of that fraud or deception. However, where the mistake is only on the part of the Home Office, and the pre-settled status holder has been making their life in the UK in the expectation of being able to acquire settled status, it is devastating for that person to be told they’re about to lose their status.

The3million is also extremely concerned that the Home Office appears to be operating a policy of allowing someone’s pre-settled status to simply expire, rather than applying all the procedural safeguards around loss of status that the Withdrawal Agreement requires. The Home Office presents this as an act of generosity, saying they are giving the pre-settled status holder the remaining time on their status in order to investigate other immigration routes to be able to stay in the UK. 

If instead the Home Office issued a decision to cancel (also known as curtail) the pre-settled status, they would have to make an individualised assessment of whether it was proportionate to take the pre-settled status away from someone. Allowing the pre-status status to expire instead circumvents the need for this crucial proportionality assessment.

So what should I do now that I’ve received this letter?

We recommend that you do the following:

• Contact the Home Office as soon as you possibly can, and ask them for more time, explaining why you need more time - for example because you would like to find a lawyer, and/or it will take you time to collect your evidence, or because you need to find someone to help you understand the email and what to do.
• Contact someone who is authorised to give legal advice and help you respond fully to the Home Office’s email / letter. See https://the3million.org.uk/useful-links for a list of organisations that can help, some of them will be able to help for free. It is important to make the strongest representations possible, and a good legal advisor will help with this.
• Report your case to us at https://the3million.org,uk/report-it, so that we can collect as much evidence as possible about Home Office practices of removing status.