Gureckis, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, December 14, 2017, [2017] EWHC 3298 (Admin)

Resolution Date:December 14, 2017
Issuing Organization:Administrative Court
Actores:Gureckis, R (On the Application Of) v Secretary of State for the Home Department

Neutral Citation Number: [2017] EWHC 3298 (Admin)

Case No: CO/1440/2017, CO/2016/2017 & CO/2384/2017




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14 December 2017

Before :


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Between :

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Marie Demetriou QC, Stephen Knight, Shanthi Sivakumaran and Natalie Csengeri (instructed by Public Interest Law Unit / Lambeth Law Centre) for the Claimants

James Eadie QC and Julie Anderson (instructed by the Government Legal Department) for the Defendants

Written submissions were made by Brian Kennelly QC (instructed by Deighton Pierce Glynn) on behalf of the Advice on Individual Rights in Europe (`AIRE') Centre.

Hearing dates: 21, 22 & 23 November 2017

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Mrs Justice Lang :

  1. These three linked claims for judicial review have been selected as test cases in which to consider the lawfulness of the Defendant's policy, and its application, to EEA (European Economic Area) nationals found sleeping rough in the United Kingdom (``UK''). The version of the policy challenged in these claims was contained in the Defendant's guidance to immigration officers entitled `European Economic Area (EEA) administrative removal', version 3.0, published 1 February 2017. The guidance set out the circumstances in which rough sleeping would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal, if proportionate to do so.

  2. The Claimants and the AIRE Centre submitted that the policy was unlawful because rough sleeping could not constitute an ``abuse of rights'' under 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 (``the Directive''), as implemented by regulation 26 of the Immigration (European Economic Area) Regulations 2016 (``the 2016 Regulations''). Furthermore, the policy discriminated unlawfully against EEA nationals and rough sleepers and the application of the policy involved unlawful systematic verification.

  3. Permission to apply for judicial review was initially refused on the papers, Ouseley J. granted permission to apply for judicial review at an oral hearing on 12 July 2017. Other similar claims have been stayed pending the outcome in the test cases. The outcome of the test cases will also be relevant to pending tribunal appeals against decisions to remove.

  4. The AIRE Centre was given permission to make written, but not oral, representations as an intervenor. I gave careful consideration to Mr Kennelly QC's well-crafted written submissions.

    The facts in the Claimants' individual cases

  5. It was common ground that permission to apply for judicial review had been granted to determine the lawfulness of the policy and its application on the basis of generic issues of principle, not on the varied facts of the individual test cases. I was asked not to make findings on the disputed facts. Therefore the individual facts are dealt with in outline only.

    Mr Gureckis

  6. Mr Gureckis was a national of Latvia. He had been living in the UK since 2009, either working or seeking work. In 2015/2016 he left the UK on several occasions to visit his family in Latvia and he also travelled to other European countries. He had a long history of intermittent rough sleeping, interspersed with periods where he did have accommodation.

  7. On the night of 23 February 2017, he was found sleeping rough by Home Office Immigration, Compliance and Enforcement (``ICE'') officers who were deployed on a joint operation with police and outreach workers targeting EEA rough sleepers. He was interviewed about his personal circumstances by an immigration officer.

  8. The Immigration Officer's witness statement said:

    ``Subject was not aware that he was not allowed to sleep rough as a breach of EEA regulations, stating that he sleeps on the street all the time. I explained to him that rough sleeping constitutes [sic] Misuse of the right to reside in the UK under EEA Regulation 23(6)(c) 2016.''

    ``Subject has been rough sleeping and according to EEA Regulations 23(6)(c) 2016 he is misusing the right to reside in the UK and is therefore liable to removal.''

  9. At the end of the interview he was served with IS.151A(EEA) `Notice to a person liable to removal' which stated:

    ``Specific Statement of Reasons

    You are specifically considered a person who has misused a right to reside in the UK under Regulation 23(6)(c) of [the 2016 Regulations] because:

    You were referred to Immigration Enforcement by the Metropolitan Police and found to be rough sleeping at...John Trundle Court...on the...23/02/2017''

  10. On 2 March 2017, Mr Gureckis lodged an appeal with the First-tier Tribunal (``FTT'') against the decision to remove him. The effect of the appeal was to suspend the operation of the removal directions. The appeal has not yet been heard.

    Mr Perlinski

  11. Mr Perlinski was a national of Poland. He had lived in the UK since 2011. His mother, sisters and step-father were living in the UK. He was divorced and his wife and son were living in Poland. He was living with his family and friends until he became homeless at the end of November 2016 and began sleeping rough. He was alcohol dependant and in poor health.

  12. In the afternoon of 15 March 2017, an immigration officer acting on intelligence that the Claimant was rough sleeping in a public toilet, visited the toilets and questioned the Claimant. He was taken to the police station for interview. The ``IO Minutes of 15 March 2017'' stated that he told them in interview that he had not worked for the past four years and so he was not exercising his EEA Treaty rights. In his evidence to the Court, the Claimant denied this, and he gave a history of his work in the UK. He accepted it had petered out once he became homeless. There was an issue as to the standard of his English and whether he should have been given an interpreter.

  13. In the ``IO Minutes of 15 March 2017'' the reasons for his removal were stated as follows:

    ``Case was referred to CIO Greenbank who authorised service ... IS151A (EEA) and detention. It was evident that subject had demonstrated a misuse of rights under regulation 26(1) of the [2016 Regulations] given that he was sleeping rough. Rough sleeping is considered to be a misuse of rights....''

  14. Mr Perlinski was served with form IS.151A(EEA) `Notice to a person liable to removal' which stated:

    ``Specific Statement of Reasons

    You are specifically considered a person who has demonstrated a misuse of rights under regulation 26(1) of [the 2016 Regulations] because you are considered to be a person who is rough sleeping in London following your encounter with Immigration Officers today. Rough sleeping is considered to be a misuse of rights. Therefore EEA nationals ... who are encountered sleeping rough and have yet to obtain a permanent right of residence are subject to administrative removal under regulation 23(6)(c) of [the 2016 Regulations]. Your personal circumstances have been considered and it has been decided that there are no exceptional circumstances which would impact on the decision to remove you from the United Kingdom and your removal is proportionate.....''

  15. Mr Perlinski was detained at an immigration detention centre. He did not appeal. In a pre-action protocol letter dated 28 April 2017, solicitors instructed by him challenged the Defendant's decision, dated 15 April 2017, to set removal directions. On 18 May 2017, following the issue of the claim for judicial review, Lewis J. granted a stay on removal. On 30 June 2017 he was granted temporary admission. He remained in the UK, living with his step father, and continued to comply with his reporting conditions.

  16. In the Detailed Grounds of Defence, dated 4 October 2017, the Defendant stated, at paragraph 12:

    ``[I]n fact, the removal decision has been withdrawn in relation to MP as he is understood to be living with a relative.''

  17. At my request, the Defendant produced a letter during the hearing, dated 21 November 2017, which confirmed that the enforcement notices had been withdrawn on 5 July 2017, and he was no longer subject to enforcement action.

    Mr Cielecki

  18. Mr Cielecki was a national of Poland who arrived in the UK in December 2015. In July 2016 he approached a homeless persons charity for assistance with voluntary departure from the UK. On 23 September 2016 he was encountered sleeping rough and was served with a `Minded to Remove' letter. On 9 November 2016, in the course of an operation by immigration officers and the police targeting EEA rough sleepers, Mr Cielecki was found sleeping in a tent on a roundabout. He was questioned and then detained. According to the HO Minute Sheet dated 9 November 2016, the immigration officer suspected that he was not exercising Treaty rights in the UK.

  19. Mr Cielecki was served with form IS.151A(EEA) `Notice to a person liable to removal' which stated:

    ``Specific Statement of Reasons

    You are specifically considered a person [sic] is not exercising Treaty rights because you entered the United Kingdom 26 December 2015. You ceased working 01 September 2016. You are no fixed abode. You are not currently in employment or in a relationship with an EU national. There by virtue of regulations 19(3)(a) and 34(2) a person in respect of whom removal directions may be given in accordance with section 10 of the Immigration and Asylum Act 1999 as a person who does not have or has ceased to have a right to reside under the Immigration (European Economic Area) Regulations 2006.''

  20. Mr Cielecki appealed to the FTT against the decision to remove him. His appeal was dismissed on 26 April 2017. The FTT Judge found that the work which he had been engaged upon in the UK was minimal, and that he had failed to...

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