Government policy on rough sleeping by EEA nationals unlawful: High Court

The Government’s policy of treating rough sleeping by EEA nationals as an abuse of EU treaty rights, rendering the individuals liable to removal if proportionate to do so, is unlawful, a High Court judge has ruled.

The case of Gureckis, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 3298 involved three linked claims for judicial review that were selected as test cases.

The policy was contained in the Home Office’s guidance to immigration officers entitled 'European Economic Area (EEA) administrative removal', version 3.0, published 1 February 2017.

The claimants and the AIRE Centre, which intervened in the case, submitted that the policy was unlawful because rough sleeping could not constitute an "abuse of rights" under article 35 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, as implemented by regulation 26 of the Immigration (European Economic Area) Regulations 2016.

They also argued that the policy discriminated unlawfully against EEA nationals and rough sleepers and the application of the policy involved unlawful systematic verification.

Mrs Justice Lang concluded that:

• The policy was unlawful because to treat rough sleeping as an abuse of the right to freedom of movement and residence was contrary to EU law.
• The Home Office 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.
• The claimants were correct in their contention that this was a blanket policy of verification, which was systematic and therefore unlawful.

Mrs Justice Lang had also been asked to give guidance on the lawfulness of the Home Office's proposed revised policy, but she declined to do so.

This was because: “None of the test cases before me concerned the proposed revised policy. The revised policy was at planning stage; only a summary was available, not the full text. It had not yet received ministerial approval. The summary was published shortly before this hearing, on 30 October 2017. It was only referred to briefly by Mr Lamont [a senior adviser at the Home Office] and by counsel. The AIRE Centre has not made representations upon it. It remained part of the proposed revised policy that rough sleeping may be an abuse of rights.”

The judge said that in view of her conclusions in the judgment, she suggested that the better course was for the Home Secretary “to take stock and re-consider the terms of the proposed revised policy, in the light of advice from her legal advisers”.