Brexit’s Hidden Casualties: How the EU Settlement Scheme Created an “Illegal” Class
The argument behind such a headline is increasingly supported by recent court rulings. A March 2026 judgment confirmed that EU nationals who failed to apply to the EU Settlement Scheme on time can lawfully be charged for NHS treatment, even if they later succeed in obtaining status. The court held that a late grant of settled or pre-settled status does not retrospectively make a person lawfully resident during the period before their application.
Critics argue this exposes a major structural flaw in the scheme. Millions of EU, EEA and Swiss nationals, along with their family members, were required to apply for digital immigration status after Brexit, yet many were never individually contacted or warned about the consequences of failing to apply. Those who missed the deadline may now face gaps in lawful residence, NHS debts, difficulties obtaining British citizenship, and challenges proving continuous residence.
The issue is particularly serious for family members, elderly people, vulnerable residents, and those who believed that long-term residence alone protected their rights under the Withdrawal Agreement. Courts have already found that some Home Office practices linked to the EU Settlement Scheme were unlawful, including delaying thousands of applications and wrongly refusing some extended family members despite their rights under the Withdrawal Agreement.
Some campaigners and legal experts now warn that the UK risks creating a “second Windrush” for Europeans: a group of people who had every right to live in Britain, but who may later discover that missing paperwork or digital status problems have left them classed as unlawfully resident.