Home office policy of removing EEA national rough sleepers found to be unlawful

R (Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin), 14 December 2017

The claimants sought judicial review of the Home Office policy entitled 'European Economic Area (EEA) administrative removal' (version 3.0, 1 February 2017). This policy contained guidance for immigration officers setting out the circumstances in which rough sleeping would be treated as an ‘abuse’ of EU Treaty rights, rendering any EEA national found sleeping rough liable to administrative removal, were it was judged proportionate.

The policy worked by means of planned operations which specifically targeted EEA nationals who had been sleeping rough and dealt with them by a combination of detaining them, removing them and asking them to leave the UK voluntarily.

The claimants were all EEA nationals who had been adversely affected by the policy having been found sleeping rough by the Home Office, setting in train the removal process.

The background to the policy, as explained by the Home Office in their evidence, was the ‘increase in rough sleeping’ between 2010 and 2015 and the perception that there had been an opportunistic ‘surge’ in the number of EEA nationals entering the UK from less economically prosperous areas ‘intent on rough sleeping’ which the effect, among other things, of damaging the ‘reputation of central London as a tourist destination’.

Mrs Justice Lang DBE found that the policy was unlawful on the following grounds:

1. Rough sleeping was not an ‘abuse of rights’ within the meaning of 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 embodied in domestic law in regulation 26 of the Immigration (European Economic Area) Regulations 2016).
2. The policy discriminated unlawfully against EEA nationals and rough sleepers. This flowed from ground 1. The policy treated rough sleeping EEA nationals less favourably than British nationals, without any justification.
3. The application of the policy involved unlawful ‘systematic verification’ in breach of the express terms of Article 14(2) of the Directive.

An order was made quashing the policy. The Home Office has indicated that it will not be appealing.

The judgment is available here: R (Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)