Following the failings identified by the Windrush Lessons Learned Review, Priti Patel promised a “compassionate… people first” Home Office. But over the past few months the Home Office seems to have entertained only the most inhumane immigration policies, such as offshore “asylum processing centres” mirroring Australia’s notorious Nauru detention centre, and using nets to clog the propellers of refugee boats crossing the Channel.

Now added to this list is a renewed focus on migrant rough sleepers. Buried in the 514-page statement of changes to the Immigration Rules that dropped last week is the revelation that the Home Office will again be targeting migrants who suffer the misfortune of sleeping on the streets.

The new rough sleeping rules

From 1 December 2020 Home Office caseworkers will, under Part 9 of the Rules (“Grounds for Refusal”), be able to refuse permission to stay or cancel any permission held by a person who has been rough sleeping:

9.21.1. Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.

9.21.2. 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.

Rough sleeping is defined elsewhere in the Rules as “sleeping, or bedding down, in the open air” or in “other places not designed for habitation”. It seems historic rough sleeping (“has been”) may fall under these provisions as well.

Fortunately these rules will not apply to very many people. Paragraph 9.1.1 excludes, for instance, asylum seekers and those who fall under the private life categories of the Rules (paragraphs 276ADE to 276DH) from the scope of Part 9. But however limited its scope, these changes make some very vulnerable people liable to enforcement action for circumstances they cannot help.

Déjà vu

We’ve been here before. In 2015 there was an outcry over “Operation Adoze”, a policy under which the Home Office rounded up rough sleeping EU citizens, detained them for “misusing” their free movement rights and subsequently removed them from the UK with a ban on returning for 12 months.

Following widespread revulsion and a powerful campaign driven by Public Interest Law Centre, the AIRE Centre and North East London Migrant Action, in 2017 the High Court in Gureckis v SSHD [2017] EWHC 3298 (Admin) found the policy unlawful. The court found that there was no basis in EU law for the claim that rough sleeping undermined an EU national’s exercise of treaty rights. The court also held that the policy unlawfully discriminated against EU nationals, and permitted the “systematic verification” of whether EU nationals who had been in the UK for over three months were indeed exercising their treaty rights – systematic verification being contrary to EU law.

Unfortunately, a case decided predominantly under EU law will not prove so useful in the post-Brexit landscape.

Public Interest Law Centre has expressed concern about the return of such a policy. Benjamin Morgan, who runs its EU Homeless Rights project, said: “We are extremely concerned about these changes to the immigration rules, which once again raise the prospect of homeless migrants being targeted for immigration enforcement. We will be working hard to support those who risk falling foul of the new rules”.

Outsourcing enforcement

A particularly shocking aspect of Operation Adoze was the readiness of those tasked with supporting the homeless to assist the Home Office with enforcement action. Police, local authorities and even homelessness charities were caught colluding with immigration officers — for instance by sharing data with the Home Office on the very homeless people they were meant to be helping. 

It’s likely that there will be a similar response to these changes. Commentators elsewhere have pointed out that the new rules could relieve councils of their legal duties to homeless migrants. There is a fear that, as usual with hostile environment policies, immigration enforcement is again being outsourced to frontline services.

If dealing with the causes of homelessness were the priority, the right approach would be to take swift action on those hostile environment measures, such as no recourse to public funds and Right to Rent, which make living impossible for migrants in the UK. Instead, these changes show that even in the midst of a global pandemic and economic crash, the Home Office’s approach to migrant destitution will be far from “compassionate” — at a time when compassion is most needed.

Public Interest Law Centre will be carefully monitoring this issue and can be contacted via their website: https://www.pilc.org.uk/