On December 14 2017 the High Court ruled that the Home Office’s policy of detaining and deporting EU rough sleepers for allegedly “abusing” their EU free-movement rights was unlawful. In a major victory for campaigners against the ‘hostile environment’, Mrs Justice Lang DBE granted the claims for judicial review in the case of Gureckis, Perlinski & Cielecki v the Secretary of State for the Home Department. The case was heard over 3 days between 21 and 23 November 2017.

Background

Between 2010 and 2017 the Home Office, working with local councils and some homelessness charities, introduced a succession of polices aimed at removing EU-citizen rough sleepers from the UK.

Immigration raids were conducted on the sleeping sites of EU rough sleepers. Many were subsequently detained and removed. According to Home Office policy, EU citizens encountered rough sleeping were ‘abusing’ their EU free movement rights and could therefore be ‘administratively removed’. Many of those detained were in work, and rough sleepers were targeted regardless of whether they had a permanent right of residence or family ties to the UK.

Outcome of the case

The High Court held that that the ‘abuse of right’ 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 unlawfully discriminated 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.