R (On the Application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)
Recent years have seen a significant increase in the number of people sleeping on the streets in Greater London — the figure has more than doubled since 2017. [1] This includes people of all nationalities, and a significant number of EEA nationals.
The High Court has 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 if this would be proportionate .
Factual Background
The Claimants were two Polish nationals and one Latvian national against whom removal notices had been served. They challenged the legality of the policy on the basis that it was contrary to EU law.
The Claimants argued that sleeping rough could not constitute an "abuse of rights" under Article 35 of EU Directive 2004/38/EC (which is implemented in to UK law by Regulation 26 of the Immigration (European Economic Area) Regulations 2016). They also argued that the policy discriminated unlawfully against EEA nationals, and that it involved systematic verification, contrary to the requirements of EU law.
In response, it was argued on behalf of the Secretary of State for the Home Department that the Guidance only treated rough sleeping as an indicator of conduct constituting an abuse of rights, which would then trigger investigation of the individual circumstances of the case. An "abuse of rights" could arise where there was deliberate and/or persistent rough sleeping which was socially and economically harmful, including: entering the UK with the intention of rough sleeping to save money, or by not making arrangements to secure accommodation; or after entry to the UK, by continuing to sleep rough without taking up the options of accommodation or returning to the home Member State. It was, however, acknowledged that it might not be appropriate to treat rough sleepers as abusing their rights if they had inadvertently fallen on hard times and intended to find accommodation or leave the UK. Under the policy, once an abuse of rights had been identified, the proportionality of proposed deportation would then be considered.
Decision
The Claimants were held to be correct in contending that the policy treated rough sleeping in itself as establishing an abuse of rights.
The concept of an abuse of rights must be considered under EU law and the case law of the Court of Justice of the European Union. Firstly, the alleged 'abuser' must be eligible to enjoy the right or benefit. Secondly, whilst they may legitimately seek an advantage in enjoying it, this will become abusive where: (i) their gaining of the right is contrary to the objective of the measure in question; and (ii) the person has deliberately employed artificial devices to obtain the right. Abusive conduct is that which is engaged in solely to satisfy the criteria necessary to access the right or benefit (§76-86).
The objective of the EU right to freedom of movement has evolved. It now encompasses the right of an EU citizen to reside in another Member State, even where there is no discernible economic or social benefit to the host Member State (§89-90). There is no requirement in the Treaties or the Directive that an EU citizen integrate in to the host state, and their motive for movement is irrelevant (§92). Many EU citizens who move would have no intention of integration, and in any event, rough sleeping would not preclude integration, for example through work or social ties (§91).
Further, whilst circumstances will inevitably arise where EU citizens residing in another Member State create social problems and become a burden on the host State, for example through criminal conduct, Article 27 of the Directive (implemented in to Regulation 27 of UK law) restricts the removal EEA nationals. By virtue of Article 27(1) and (2), the grounds of public policy, public security or public health must "not be invoked to serve economic ends", and the "personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society." Rough sleeping, even where accompanied by low level offending, would not constitute such grounds for removal (§96).
In light of this, the test for an "abuse of rights" had not been met. Firstly, sleeping rough would not mean that a person who otherwise satisfied the conditions for residence had undermined the purpose/s of the Directive. It made no difference whether the policy treated rough sleeping ipso facto as an abuse of rights, or only treated intentional, harmful rough sleeping as an abuse (§98). Secondly, rough sleeping could not be described as an "artificial device" undertaken to fulfil the conditions of EU law: it bears no connection to the requirement to hold a valid EEA state identity card or passport (the condition for an initial three month right of residence), or to the requirement for an extended stay, which is that the individual is a worker or is seeking work (§102-106).
On the second ground, the policy treated EEA nationals less favourably, and given that rough sleeping was not capable of amounting to an abuse of rights, any justification relied upon for such discrimination was unlawful (§112-113).
Finally, the evidence before the court showed that as a result of the policy, rough sleepers were targeted and questioned by police and immigration officers simply because they were presumed to be abusing their EEA rights of residence. This amounted to a blanket policy of verification which was systematic and unlawful. Enforcement officers may only lawfully question individual EEA nationals who are sleeping rough if they have reasonable doubt as to whether they are exercising Treaty rights, in particular, as to whether they are economically self-sufficient during an extended period of stay (§122-123).
The Guidance was therefore quashed by the court.
Comment
This case will inevitably spark debate on the role of EU rights within UK law. Irrespective of the view taken of the result, the judgment should impress upon government departments the importance of ensuring that policies which are directed to solving these complex social issues contain clear guidance for officers on the ground. In particular, policies should require closely reasoned justification for commencing investigation in to deportation in individual cases. The requirements of EU law, as presently replicated in UK law, are clear: sleeping rough is not an "abuse of rights", and deportation for breach of EU law rights will only be permitted where the individual concerned poses a sufficiently serious threat to the fundamental interests of society – general economic or social detriment alone is insufficient.
The case will have real practical repercussions: other similar claims have been stayed pending its outcome, and it will be relevant to pending tribunal appeals against decisions to remove. However, the judge declined to give a formal declaration as to the law in addition to quashing the Guidance, and it is notable that a revised and more "nuanced" forthcoming policy, which also provides that rough sleeping may be an abuse of rights, was mentioned (but not fully aired) before the court. The impact of this case is therefore more likely to be felt for its guidance for those who are formulating policy, rather than in causing dramatic changes to its nature or direction.
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[1] Data published by the Strategic Legal Fund in May 2017, based on a report by Jean Demars: Rough sleeping as 'abuse/misuse' of the right to freedom of movement, relied on by the High Court at §107.