Rough sleeping is not an abuse of EU free movement rights

by Mattia Bosio - Legal Officer at FEANTSA

On 14 December 2017, the High Court of the United Kingdom Queen’s Bench Division in the Gureckis and Others case ruled that the controversial Home Office policy of considering rough sleeping as an abuse of EU free movement rights is unlawful.

Following the judgement, UK authorities, to comply with the findings of the decision, published an amended version of the policy. In the revised policy all references to rough sleeping as a misuse of Treaty rights were removed.

The cases at stake concerned EU citizens (two Polish nationals and one Latvian national) against whom removal notices had been served after having been found sleeping rough in the UK. All of them have been living in UK for years and all were workers or jobseekers or family members of EU citizens with a right to reside in UK.

They lodged an appeal against the decision to remove them and challenged the legality of the policy on the basis that it was contrary to EU law. Their claims were brought by the Public Interest Law Unit and North-East London Migrant Action (NELMA). The High Court granted claims for judicial review to test the lawfulness of Home Office’s policy and upheld all three grounds advanced by the claimants, holding that the policy was contrary to EU law because rough sleeping was not to be considered as an abuse of rights, was discriminatory against EU citizens on grounds of nationality and amounted to an unlawful systematic verification of the right to reside of the EU citizens.

The arguments at the basis of the claims and of the decision of the High Court are in line with the object of the complaint that FEANTSA, alongside with UK-based Migrants’ Rights Network and Praxis, filed before the European Commission on the 15th of June concerning the infringement by the UK of article 35 of Directive 2004/38[1].

Hereinafter I will briefly sum up the main points of the Home office policy concerning the removal of EU citizens sleeping rough and explain why it is contrary to EU free movement law.

The Hostile Environment: The Home Office policy on EU rough sleepers

The Home Office introduced the concept of rough sleeping as an abuse of rights in May 2016.

In November 2016, The United Kingdom adopted the new EEA Regulations, that came into force on 1 February 2017. These immigration rules for EU citizens, recasting the previous 2006 Regulations, implement at national level the rules provided at EU level by Directive 2004/38/EC (hereinafter the Directive).

On 1 February 2017, the UK Home Office published a Guide on the administrative removal of EU citizens and their family members. This Guide is the version of the Home Office policy declared unlawful by the High Court (hereinafter the Guide).

Under the interpretation of the EEA Regulations provided in the Guide, rough sleeping is an appropriate ground to justify the expulsion of an EU citizen on the basis of misuse of rights. This need to be considered in the light of EU free movement law.

Expulsions of EU citizens under EU law. When it is admissible?

The Directive provides for three main situations where the host Member States may restrict free movement and consequently adopt expulsion measures toward EU citizens.

·       Firstly, under article 27 of the Directive, Member States may adopt expulsions on grounds of public policy, public security or public health.

·       Secondly, expulsions on other grounds are implicitly admitted under the Directive. This is the case of EU citizens that fail, or cease, to meet the conditions for legally residing under the Directive.

·       Thirdly, under article 35 of the Directive, Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights.

Regulation 23(6) of the EEA Regulations, reflecting the approach on expulsions set out in the Directive, provides three main bases for removal of EU Citizens:

a)     the person does not have a right to reside;

b)     the removal is justified on grounds of public policy, public security or public health;

c)     the removal is justified on grounds of misuse of rights.

According to the Guide (Pages 15 and 16), rough sleeping may be a misuse of a right to reside, therefore EU citizens or their family members encountered sleeping rough may be subject to administrative removal under Regulation 23(6)(c).

This interpretation of the notion of misuse of rights including rough sleeping is consistent with the previous policy adopted by the Home Office in May 2016 under the period of application of the former 2006 EEA Regulations, whereby rough sleeping must be interpreted as an abuse of the right to freedom of movement. In 2017, the Guide updated the policy and start interpreting rough sleeping as “a misuse of the right to reside”, replacing the term “abuse”, which was used previously.

In both cases the terms abuse and misuse adopted under the Home Office policy clearly refer to the notion of abuse of rights contained in article 35 of the Directive to justify administrative removal on this legal basis. This was confirmed also by the Defendant that during the judicial review declared that it is common ground that the term ‘misuse of rights’ in the 2016 Regulations has the same scope as the concept of abuse of rights in EU law (including as reflected in Article 35 of the Directive)[2].

Therefore, letter c) on removals justified on grounds of misuse of rights represents the implementation at national level of article 35 of the Directive on abuse of rights. The concept of an abuse of rights, as confirmed by the same High Court in its decision, must be considered under EU law and the case law of the Court of Justice of the European Union.

Rough sleeping may be considered as an abuse of EU free movement rights?

Under Article 35 of Directive 2004/38 Member States may expel EU citizens in the case of abuse of rights or fraud, such as marriages of convenience.

Under the Communication, it is clearly stated that there is no abuse where EU citizens obtain a right of residence under EU law in another Member State, as they are benefiting from an advantage inherent in the exercise of a right of free movement protected by the Treaty, regardless of the purpose of their move. 

The Communication makes clear that the EU notion of abuse of rights is clearly confined to artificial conducts entered into with the sole purpose of evading national law by invoking free movement and residence rights under EU law.

This interpretation is also confirmed by the EU case-law. The Court of Justice of the European Union in a recent judgement stated that proof of an abuse requires: first, that the purpose of EU rules has not been achieved; and second, the intention to obtain an advantage from EU rules by artificially creating the conditions laid down for obtaining it.

As stated by the High Court in its Decision, the advantage must be obtained wrongfully[3]. What separates legitimate advantage-seeking from an abuse of rights is, first the gaining of the right or benefit in circumstances that are contrary to the objective of the measure in question; and, secondly, the deliberate employment of artificial devices to gain the right or benefit[4].

UK rules on expulsion of EU citizens sleeping rough, however, did not provide any information on the abuse of EU free movement rights by rough sleepers, nor do they provide any specific detail as to any possible advantage obtained by rough sleepers from EU rules.

In view of the above, rough sleeping, even as a concerning type of social behaviour, certainly cannot be considered a practice that abuses EU free movement rights. This was the same conclusion reached by the High Court. In its opinion, first, sleeping rough would not mean that a person who otherwise satisfied the conditions for residence, had undermined the purposes of the Directive[5]. Secondly, rough sleeping could not be considered as an artificial activity undertaken to satisfy the requirements for having a right to reside under EU law[6].

Could MS check if EU citizens moving on their territory satisfy residence conditions?

Under article 14(2) of the Directive verification of the fulfilment of the conditions for residence must not be carried out on a systematic basis. In that same sense, under Regulation 26(6) of the EEA Regulations, removal on the grounds of misuse of rights may not be invoked systematically.

In accordance with a settled EU case-law, measures adopted by national authorities, on the grounds of abuse of rights must be based on an individual examination of the case in question[7]. National authorities may not take measures based on a general presumption of abuse, which would result in systematic checks.

The Guide is clearly based on the presumption of the existence of a general risk of abuse of rights by rough sleepers. Rough sleeping alone is enough to justify expulsions founded on considerations of general prevention of homelessness and specifically targeting a certain category of EU citizens for the mere fact of rough sleeping. This was the same finding of the High Court, stating that EU citizens were targeted on the streets simply because they were rough sleeping and therefore presumed to be abusing EU free movement rights. Large scale comprehensive operations undertaken by the Home Office resulted in a blanket policy of verification, which was systematic and therefore unlawful[8].

The Guide entailed further violations of EU law that were not considered in the decision of the High Court. I will briefly sum up these additional breaches of the Directive here below.

Expulsions of EU citizens having a right to reside in the Host Member State

The Guide (page 16) envisaged the expulsions of EU citizens found rough sleeping even if they have been in the UK for less than 3 months or were otherwise exercising Treaty Rights. Under article 14(1) of the Directive, EU citizens have the right of residence for up to three months as long as they do not become a burden on the social assistance of the host Member State.

Under article 14(4) of the Directive, expulsions may in no case be adopted against EU citizens who are economically active, save on grounds of public policy, public security or public health. Being economically active means being a worker, self-employed person or a jobseeker.

Under the Guide and during its application by the Home Office, no assessment was foreseen as to whether the EU citizen sleeping rough did meet the conditions of right to residence under the Directive (being economically active), or whether that person may represent a burden. Rough sleepers were removed notwithstanding circumstances in which they were exercising free movement rights under the Directive and notwithstanding that they had not sought access to social assistance.

A ban on entry in the context of abuse of rights

In accordance with the Guide (see Page 16), individuals removed for rough sleeping may also be subject to re-entry restrictions for 12 months. Under article 15(3) of the Directive, the host Member State may not impose a ban on entry in the context of an expulsion decision on grounds other than public policy, public security or public health.

Re-entry bans for 12 months following an expulsion due to rough sleeping represents a clear breach of EU law whereby Member States may not impose a ban on entry in the context of an expulsion decision on grounds of abuse of rights.

Lessons to be learned at EU level

No other EU member State to date is known to have interpreted rough sleeping as an abuse of EU free movement rights, nor to justify expulsions of EU mobile citizens merely on the grounds of rough sleeping. The Home Office Policy declared unlawful by the High Court was not only a serious breach of the EU free movement rules but was also contrary to the general social values and principles of the EU and to the EU fundamental rights established in the Charter and rooted in the constitutional traditions common to the Member States.

The European Commission has recently confirmed that homelessness does not affect a EU citizen’s right to live in another EU member state. Commissioner Jourová pointed out that homelessness does not affect a EU citizen’s right to live in another EU member state.

Since the entry into force of the policy, an important number of EU citizens, mainly from Central and Eastern EU Countries, have been detained and deported[9] from UK merely on the ground of rough sleeping, often even if they were legally residing there under EU law. Even if the Guide was declared unlawful at national level by the High Court, I consider that the EU Commission must take a formal position against it and condemn the UK for its implementation since 2016, to prevent such measures being adopted by other EU Member States. In addition, it is also important for the European Commission to be vigilant to promptly assess if the UK’s proposed revised policy is in line with EU law.