High Court Rules deporting Homeless EU Citizens Illegal – Compensation May Be Payable To Those Unlawfully Detained

Homeless person

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

On Thursday, the High Court dealt a blow to the UK Governments stealthy plan to create a hostile environment for EU citizens in Britain.

The court ruled the controversial policy of deporting homeless EU nationals is unlawful and ordered the Home Office to stop the practice immediately.

The government has declared rough sleeping an abuse of EU free movement rights since 2016. However, this has been strongly criticised by the European Commission, who only four days ago stated that no government in the bloc had the right to deport EU citizens simply because they were homeless.

The sharp increase in the deportation of EU citizens since Brexit

Before commenting further, it must be pointed out that many people sleeping on Britain’s streets are victims of mental health problems, addiction and abuse, and would previously have qualified for housing benefit to help them find a home. However, the right to a housing benefit for EU national jobseekers was abolished in 2014. 

In September, the Independent reported that the number of EU nationals being deported from the UK has skyrocketed since Brexit.

The report by Ben Kentish stated: 

“Analysis of official government data shows there were 26 per cent more enforced removals of EU nationals in the first three months of 2017 than in the same period last year. 

Almost 5,000 EU citizens have now been deported from Britain in the last 12 months: the highest since current records began and an increase of 14 percent in the last year alone.  The rate of removal for EU nationals has increased fivefold since 2010.”

Mr Kentish wrote further:

“As Home Secretary, Theresa May vowed to create “a really hostile environment for illegal migrants”. Those working with migrants say that, in reality, the Government has adopted a “hostile” approach towards all immigrants, even those that are in the UK legally.”

Some of London’s best immigration solicitors and Human Rights campaigners stated that many of the removals were illegal. 

An EU national is lawfully exercising their Treaty rights if they reside in another EU Member State as:

  • a self-employed person,
  • an employed person,
  • economically self-sufficient, or
  • a student

In May 2016, the government quietly introduced in a rule change, without much public scrutiny, that stated that rough sleeping constitutes an "abuse of rights" under article 35 of Directive 2004/38/EC (the Directive), on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 

The rule stated that EU citizens sleeping on the streets should therefore be deported even if they had committed no previous criminal offence.

Supreme Court judgment declaring the deportation of homeless EU citizens illegal

The case of R (Gureckis) v Secretary of State for the Home Department involved three claims for judicial review.  The claimants and the AIRE Centre (a charity that promotes awareness of European law rights), submitted that the policy of deporting EU nationals who were sleeping rough was unlawful because rough sleeping could not constitute an "abuse of rights" under article 35 of Directive.

The court relied on the definition provided by the Department for Communities and Local Government and the Combined Homelessness and Information Network (CHAIN), which stated rough sleeping meant:

“sleeping, about to bed down (sitting on or in or standing next to their bedding) or actually bedded down, on the street or in other open spaces or locations not designed for habitation, such as doorways, stairwells, parks or derelict buildings.”

Those living in hostels, campsites or shelters could not be called rough sleepers and neither could squatters or travellers, or those involved in an organised protest.

Regarding the right to remove rough sleepers, the Home Office guidance states:

“You may consider the administrative removal of EEA nationals or their family members who are sleeping rough, even if they:

• have been in the UK for less than three months

• are otherwise exercising Treaty Rights

Individuals removed under regulation 23(6)(c) for rough sleeping will be subject to re-entry restrictions for 12 months following their removal or voluntary departure, and will attract the standard notification periods for appeal.”

The Home Office tried to argue that people who were persistent rough sleepers were outside the aim of the Directive which was set up to promote integration and prevent EU citizens becoming a burden to the host Member State. This was rejected by Justice Lang who stated:

“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.”

Not only was the rule found to be unlawful, but it was also held to be discriminatory.

“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.”

Claiming compensation if you were detained and deported from the UK for rough sleeping

If you were or are currently being held in an immigration detention centre because you were found to have been sleeping rough, you may be eligible for compensation following today’s landmark decision.

The Home Office has announced that although it is “disappointed” with the court’s decision, it will not be appealing.

This decision provides us all with hope at a time of year when most of us are conscious of those less fortunate. Thankfully, once again, the courts have forced the Home Office to abandon another one of its draconian policies.

OTS Solicitors has been ranked highly by the Legal 500, and we have won numerous other awards for our immigration services (including a Global Excellence Award for the Most Trusted in Immigration law). 

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