Foreign National Rough Sleepers Penalised Under the UK’s Revised Immigration Rules

by | Nov 3, 2020

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About Unkha Banda and Misha Nayak-Oliver

Unkha Banda is an Immigration Solicitor in the UK, and current student undertaking an LLM in Human Rights, Conflict and Justice at SOAS, University of London.

On 22 October 2020, the UK Government’s Home Office Department published a Statement of Changes (‘SoC’) to update the UK’s Immigration Rules. The 507 page document confirmed that from 1 December 2020, being a rough sleeper will be a ground for refusing permission to stay and/or cancelling existing permission to remain in the UK (para. 9.21). The SoC defines ‘rough sleeping’ as “sleeping, or bedding down, in the open air (for example on the street or in doorways) or in buildings or other places not designed for habitation (for example sheds, car parks or stations)” (p.22).

This is worrying; due to hostile environment policies, having a secure immigration status is essential to providing a person a route off the streets. If people are prevented from regularising their immigration status, or have their status cancelled, they will be unable to access the support they need to rebuild their lives, and ultimately be liable for removal.

Sadly, this is not the first policy of this kind in the UK. A few years ago, the UK Government was forcibly removing EEA nationals who were rough sleeping on the basis that rough sleeping is an abuse of EU Treaty rights. That policy was found to be unlawful and discriminatory (see R (Gureckis) v SSHD).

The SoC will impact a lot of vulnerable people. According to CHAIN, a multi-agency database recording information about rough sleepers and the wider street population in London, between April 2019 and March 2020 around 10,726 people were rough sleeping. Around 5089 were not from the UK, and 47% had mental health conditions (CHAIN 2019/20).

The UK Government will essentially be penalising people for its own failures to meet its human rights obligations with respect to the right to adequate housing.

The UK has committed to implement the Sustainable Development Goals, which includes ending homelessness by ensuring access for all people to adequate, safe and affordable housing by 2030 (see target 11.1). In 2019, the UK Government’s Ministry of Housing, Communities & Local Government said it would “[h]elp vulnerable people by implementing the reforms required to halve rough sleeping by 2022 and end it by 2027”, and in October 2020, Communities Secretary, Rt Hon Robert Jenrick MP said: “As we approach winter, we are focusing on the best way to protect rough sleepers from the cold weather and coronavirus”.

The amendments also violate the right to adequate housing under Article 11(1) of the ICESCR which is defined as the right to live in security, peace and dignity (CESCR, General Comment No.4). Under Article 2(2), the right must beexercised “without discrimination of any kind as to…national or social origin [emphasis added]. As part of its obligations, the UK has to show that it has made use of all resources at its disposition to comply with minimum core obligations. In this light, the amendments set out in the SoC are discriminatory and condemn people whose right to adequate housing is being infringed.

The amendments could also constitute cruel, inhuman and degrading treatment (under Article 3 of the ECHR and Article 7 of the ICCPR), and if they are detained pending removal this could also mount to a breach of the right to liberty (under Article 5 of the ECHR and Article 9 of the ICCPR). It is important to note that the Human Rights Committee’s General Comment No.8 recognises that Article 9 of the ICCPR specifically protects against laws which permit deprivation of liberty in cases of vagrancy.

The UN Special Rapporteur on the right to adequate housing has helpfully summarised that States have the following obligations in relation to homelessness:

  1. To have an immediate obligation to adopt and implement strategies to eliminate homelessness.
  2. To combat discrimination, stigma and negative stereotyping of homeless people as a matter of urgency and homeless people must be recognized as a protected group in all relevant domestic anti-discrimination and hate-crime laws, including where relevant in national Constitutions, national and subnational human rights legislation and in city charters; and
  3. To immediately repeal laws or measures that criminalize or restrict homeless people or behaviour associated with being homeless, such as sleeping in public spaces.

Instead of acting in contravention of international human rights standards, the UK Government should adopt a rights-based housing strategy aimed at ensuring adequate housing and eliminating homelessness for all people in conformity with its international commitments and human rights obligations.

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