Sharmistha Michaels features in the Solicitors Journal discussing the removal of homeless migrants: a legal challenge waiting to happen?

On 22 October 2020, the Home Office published a Statement of Changes to update the UK’s Immigration Rules (the rules), as part of the post-Brexit immigration changes. The reforms included a new discretionary ground for refusal or cancellation of permission to stay for those individuals in the UK on a temporary basis, found sleeping rough.

Homelessness is difficult to get out of without access to support, something often unavailable to migrants. Having secure immigration status is essential to enable a person to find accomodation and gain access to the support needed to rebuild their lives. With a significant proportion of homeless people being migrants, the government’s recent changes to the rules have been widely criticised as being hostile and discriminatory, and as criminalising homeless people.  

Changes to the law

The new paragraph of the  rules, “Rough sleeping in the UK”, states:

  • Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.
  • Where the decision maker is satisfied that a person has been rough sleeping in the UK any permission held by the person may be cancelled.

Initially, the Home Office indicated decision makers should refrain from applying the new rules pending guidance; this has now been published and appears to apply retrospectively.

The guidance provides welcome clarification as to the application of the rules, which have been noticeably narrowed – but arguably, not enough. It indicates: “permission [to remain in the UK] may only be refused or cancelled where a person has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour”.

While the government claim this new rule will be used sparingly, it seems likely that,  when left to the discretion of the individual decision maker, and given the Home Office’s broad definition of rough sleeping – “sleeping, or bedding down, in the open air (for example on the street or in doorways) or in building or other places not designed for habitiation (for example sheds, car parks or stations).”, these rules may impact many vulnerable people.

The struggles of homelessness

By way of example, there is no clarification in the guidance on timescales for homelessness. Arguably, even short periods of homelessness or sleeping rough could count as a negative mark on an otherwise flawless immigration history, and potentially lead to refusal or cancellation of leave.

We should also ask what is meant by ‘refusing suitable offers of support’? Will the Home Office need confirmation from local authorities that offers have been made and why they may have been refused? Is the Home Office going to train decision-makers in housing law? The guidance, it appears, leaves all such determination in the hands of the decision-maker.

The inclusion of these amendments seems strange, given the government was successfully challenged when an attempt was made to apply a similar rule to EU nationals who were sleeping rough.

In Gureckis, R (On the Application of) v Secretary of State for the Home Department (SSHD) [2017] EWHC 3298 (Admin) at [127], the High Court quashed policy guidance which set out the circumstances in which rough sleeping would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal where this was deemed to be proportionate.

The claimants argued the policy discriminated unlawfully against EEA nationals, and that it involved systematic verification, contrary to the requirements of EU law. The SSHD, in response, said the guidance only treated rough sleeping as an indicator of conduct that would constitute an abuse of rights – for example, coming into the UK with the intention of rough sleeping. This would trigger investigation of the individual circumstances and the proportionality of proposed removal would be considered. This policy was found to be unlawful and discriminatory. So why has the Home Office decided to try this again

Arguably, homeless people are some of the most vulnerable in our society. Most are forced into homelessness through no fault of their own – for example, care leavers, those struggling to access support, the unemployed, victims of people-trafficking and those fleeing domestic violence.

For migrants, there are often no family or friends in the UK to provide temporary support and there are additional barriers to obtaining help to avoid homelessness. Knowing how and where to access legal and immigration advice and benefits is a challenge. These rules could see the detention and removal of people who, but for a period of homelessness, would be able to regularise their status with appropriate support.

The Home Office is aware of the potential risks of these rules; an internal Home Office Equality Impact Assessment published by Liberty following a Freedom of Information Act Request outlines the department’s analysis of the risks this new policy could present for migrant rough sleepers.

It notes the rules could indirectly effect and discriminate against minority groups, and have a disproportionate impact on the basis of race, due to factors that can more frequently impact certain ethnicities. It further highlights vulnerable groups, such as Asian women fleeing domestic abuse, could be one of the victims of these new rules.

Domestic violence

Domestic violence is one of the leading causes of homelessness for women, and this new policy could lead to an impossible situation for migrant victims. Many arrived in the UK as the spouse of a British national or through other immigration routes, and a large proportion have no recourse to public funds (NRPF) under section 115 of the Immigration and Asylum Act 1999, as they are subject to immigration control.

When a marriage breaks down, they are out of options, forcing them to stay in an abusive relationship or risk homelessness and destitution, and now the additional risk of removal.

The Domestic Violence (Amendment) Act 2002 was implemented because victims were being forced to stay with their abusers in order to remain. It was also introduced to enable migrant women on spousal visas a route to apply for indefinite leave to remain,  should their relationship break down due to domestic violence.

However, these rules do not apply to migrant women who are not on spousal visas and subject to NRPF. NRPF means they cannot access Universal Credit or other benefits to prevent homelessness. The economic impact of the pandemic has hit people with NRPF especially hard and many face the prospect of losing their homes and their right to stay in the country. The government is being accused of penalising people for its own failure to meet its human rights obligations with respect to adequate housing.

The challenges ahead

Following Brexit, it is likely UK homelessness and border policy will develop synergistically for the foreseeable future. Thousands of EU citizens who have not regularised their status may become undocumented, and the Gureckis protections from deportation and removal may no longer apply.

The impact assessment in relation to the new rules concluded any discrimination on the grounds of race, disability or any other protected characteristic is not direct discrimination and therefore not automatically unlawful, perhaps trying to contrast these new rules with what they had previously attempted to implement in relation to EU nationals sleeping rough.

It appears there are no adequate safeguards for vulnerable people and the guidance is unclear and non-specific. Leaving the application of these rules to the individual decision-maker, and the proposal that any discrimination can be mitigated by the exercise of discretion appears in itself to be unsafe. Given the Home Office’s identification of the risk of indirect discrimination, it seems unlikely these new rules will remain unchallenged.

Sharmistha recently commented on the Nationality and Borders Bill in the Solicitors Journal.  Read the article in full and her comments here.
Sharmistha Michaels is a barrister specialising in Human Rights, Extradition, Immigration, Asylum and Professional Discipline & Regulatory law. Sharmistha provides advice and representation in all areas of immigration, asylum, nationality, EU free movement, deportation and detention. 
This article was first published on 9 July 2021 by The Solicitors Journal. To read the article on the Solicitors Journal website click here (subscription required).