On 01 December 2020, the Home Office amended the Immigration rules to include a new discretionary refusal or status cancellation ground where a person is deemed to be rough sleeper. The newly issued guidance clarifies key points in respect of how the guidance should operate:
- The rule was amended on 6 April 2021 to clarify that permission may only be refused or cancelled where a person has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour.
- Rough sleeping means sleeping, or bedding down, in the open air (for example on the street, in doorways or parks) or in buildings or other places not designed for habitation (for example stairwells, sheds, car parks, stations, or tents).
It should be noted that the policy explicitly states that it should not be applied to EEA/Swiss citizens and family members who have been granted status under the EUSS. However, the policy will apply to EU citizens who come to the UK under the new immigration system. With respect of the EUSS, the guidance confirms that anyone with status under the scheme should not have their status considered for cancellation on the basis of rough sleeping. The policy also confirms that there may be EU citizens who have not applied to the EUSS before 30 June 2021 deadline and confirms that they would be eligible to apply late to the scheme, if they have good reason for missing the deadline. Unfortunately, the guidance does not direct members of Immigration Enforcement teams to signpost and assist rough sleeping EU citizens to apply to the EUSS (by contrast the EUSS caseworker guidance contains explicit instructions for Immigration Enforcement when they encounter EU citizens who have not applied to the EUSS by 30 June 2021; it would be beneficial for these instructions to be repeated in the guidance on rough sleepers).
This Home Office policy is controversial as some organisations consider this to be targeting migrants already in highly vulnerable situations. Comparison is made to a previous unlawful Home Office policy to remove homeless EEA citizens and there is a legal challenge against the policy in motion.
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