The High Court decided today that the Home Office’s policy of detaining and deporting rough sleepers from EU countries is unlawful. The case is R (Gureckis) v Secretary of State for the Home Department  EWHC 3298 (Admin), a judicial review challenge by three EEA nationals to their removal under the Immigration (European Economic Area) Regulations 2016.
— Public Law Unit (@_PILUNIT) December 14, 2017
Targeting Eastern European rough sleepers
In 2016 the Home Office began accusing people – mainly Eastern Europeans – found sleeping on the streets of “misusing” their EU free movement rights, and subjecting them to administrative removal from the UK. Those removed were barred from returning for 12 months.
The background to this policy, the department’s representative explained, was a 55% increase in rough sleeping between 2010 and 2015. The obvious answer was not, in the age of austerity, to deal with the underlying issues, but to target the “surge in entry to the UK by EEA nationals from less economically prosperous areas intent on rough sleeping” [paragraph 53 of the judgment].
Mrs Justice Lang pointed out the practical effect of “contradictory and ambiguous” Home Office guidance on the policy was that “busy immigration officers implementing the policy on the ground treated rough sleeping as an abuse of rights in itself”. The starting point, then, was to establish whether that was in line with EU law.
Legitimate advantage-seeking or abuse of rights?
The judgment notes that:
What separates legitimate advantage-seeking from an abuse of rights is, first the gaining of the right or benefit in circumstances that are contrary to – or, at the very least, outside – the objective of the measure in question; and, secondly, the deliberate employment of artificial devices to gain the right or benefit. These elements distinguish lawfully obtaining an advantage from wrongfully obtaining it. 
So, by rough sleeping, does a person gain a right that is contrary to or outside the aim of EU law (specifically, Directive 2004/38/EC)? The Home Office maintained just that: the directive was designed to ensure promotion of the internal market, social cohesion and integration, and to prevent burdens on the host state.
Lang J rejected these points:
Whilst freedom of movement is indeed an essential element of the internal market (see Article 26(2) TFEU), it also has a wider purpose under the Treaties… The right of an individual EU citizens to reside in another Member State is not solely for the economic and social benefit of the Member State; it is an individual right of citizenship which may be exercised even where there is no discernible economic or social benefit to the Member State from the presence of the particular individual. 
Ultimately the judge found that “there was no proper basis for concluding that, by sleeping rough, a person who otherwise satisfied the conditions for residence, had undermined the purpose/s of the Directive”.
Because the underlying policy was unlawful, the applicant also won on the second, discrimination ground:
In the light of my conclusion… that rough sleeping was not capable of amounting to an abuse of rights, and so the policy was unlawful… the Defendant could not justify its less favourable treatment of EEA rough sleepers on the grounds that they were suspected of abusing their rights to freedom of movement and residence, in breach of the 2016 Regulations. The justification upon which the Defendant relied was unlawful. 
For good measure, the claimants succeeded on the third ground: that the department’s approach entailed “verification in a systematic manner contrary to EU law”.
The Home Office has said that it will not appeal and has already updated several sets of official guidance to remove references to rough sleepers:
- EEA decisions on grounds of public policy and public security
- European Economic Area (EEA) administrative removal
- European Economic Area nationals: misuse of rights and verification of EEA rights of residence
Two other Home Office policies on EEA nationals also just updated – never seen them move so fast on something like this. https://t.co/j9IAIVB9cx
— Colin Yeo (@ColinYeo1) December 14, 2017
A “more nuanced” policy is in the works, but Lang J declined to tackle the lawfulness of that, as it was only at planning stage and not fully argued before her. She suggested that the Secretary of State “take stock and re-consider” it all the same.
Those who have been targeted and removed as rough sleepers may have a claim for unlawful detention against the Home Office. People handed a 12-month ban may be able to have that ban lifted and return to the UK. All this could prove expensive for the Home Office.
The decision also strikes a blow against the “hostile environment” for EU citizens. Come 29 March 2019, though, vulnerable people in this situation will no longer have the protection of EU law. As Chris Desira has written elsewhere on this blog, homeless people appear to fall completely outside the terms of the UK-EU agreement on citizens’ rights.