The UK High Court has ruled the revised policy of the Home Offices for the detention and deportation of EU citizen ‘rough sleepers’ was unlawful.
Mrs Justice Lang granted judicial review in the matter of Gureckis, Perlinski & Cielecki v the Secretary of State for the Home Department. The Claimants, represented by the Public Interest Law Unit of the Lambeth Law Centre, argued that the Home Office’s policy and its systematic application was in breach of EU law because the act of ‘rough sleeping’ could not in and of itself constitute an abuse of rights within the meaning of article 35 of Directive 2004/38/EC (the ‘Directive’). Article 35 of the Directive confers a right on citizens of the European Union and their families to move and reside freely within the territory of member states.
Mrs Justice Lang found for the Claimants on the following grounds:
Lawyers on behalf of the Claimants submitted rough sleeping could not constitute an “abuse of rights” under Article 35 of Directive 2004/38/EC on the Rights of Citizens of the Union. It was also submitted that the policy discriminated against EEA nationals and rough sleepers and the application of the policy involved unlawful systematic verification.
Mrs Justice Lang in granting leave for judicial review found that the policy was unlawful because to treat rough sleeping as an abuse of the right to freedom of movement under EU treaties was contrary to EU law, referring to the leading case of Emsland-Stärke v Hauptzollamt Hamburg-Jonas in her reasoning.
Carrying on from this, Mrs Justice Lang also concluded that because rough sleeping was not capable of amounting to an abuse of rights and the Home Office 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 and discriminatory.
In relation to the policy’s systematic verification Ms Justice Lang stated that there may well be circumstances in which enforcement officers may lawfully question individual EEA nationals who are sleeping rough, if they have a reasonable doubt as to whether they are exercising Treaty rights, in particular during the extended period of residence where there may be a reasonable doubt as to whether they are economically active or economically self-sufficient if they are destitute. She stated that unlawfulness only arises where the verification is not based upon a reasonable doubt, and is systematic.
For those reasons, Mrs Justice Lang granted the three applications for judicial review.
For further commentary please click here.
For a copy of the judgement please click here.
For a summary of Emsland-Stärke v Hauptzollamt Hamburg-Jonas please click here.