By J
24/10/2020

This isn’t going to be Priti

On 22 October 2020, the government published just over 500 pages of changes to the immigration rules. Thankfully, most of those can be ignored by this blog. But there is one bit that we really, really, need to talk about.

With effect from 9am on 1 December 2020, the following rule applies:

Rough sleeping in the UK

9.21.1. Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.

9.21.2. Where the decision maker is satisfied that a person has been rough sleeping in the UK any permission held by the person may be cancelled.

‘Rough sleeping’ means 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).”

As you can imagine, there is quite a lot to be concerned about in here.

The first problem is how this impacts on Part 7, Housing Act 1996 and Part 2, Housing (Wales) Act 2014 (i.e. the homelessness duties). As you’ll all know, in order to access support under those provisions, you have to be “eligible for assistance” and, in simple terms, that means (if you are a foreign national) you need to be lawfully present in the UK. It is trite law that someone can go in and out of eligibility (e.g. whether someone is acting as a Zambrano carer is something that can change over time).

In both Part 7 and Part 2, if you apply for assistance and the local authority are satisfied that you are homeless and eligible for assistance, then an initial housing duty arises (s.189B, 1996 Act; s.72, 2014 Act). That won’t necessarily be for very long and it won’t necessarily be the best quality accommodation but at least you’re likely to be off the streets whilst the local authority figure out the extent of any further duty.

It is obvious that some (perhaps not all, but certainly some) local authorities will see these immigration rules as a way of minimising their homelessness duties. The foreign national rough sleeper gets the initial housing provision. The local authority rings the Home Office and asks for their permission to remain in the UK to be cancelled. And, if it is cancelled then *puff*, the person is no longer eligible for assistance under Parts 7 or 2. A target is met. A statistic is recorded. A budget is preserved. For the most seriously unwell, there will be the Care Act 2014, but that is a problem for a different department or, in a two-tier area, a different local authority.

The second problem is definitional. I really struggle with what actually falls within this policy. If, for example, you are sleeping in a tent, but on the streets, is that “rough sleeping” for these purposes? A tent won’t count as a “building” (an undefined term, but it probably means ““… a built structure with a significant degree of permanence which can be said to change the physical character of the land” – see the recent Law Commission papers on RTM and Enfranchisement for a very detailed discussion of the case-law on this word). It probably isn’t a “place” either – it’s not akin to a shed, car park or station. It is, in law, a chattel (see the Elitestone line of cases for the distinction between a chattel which one can live in and an actual dwelling). Does a tent count as the open air? Again, presumably not. The whole point of a tent is that you are not exposed to the open air.

Why has the draftsperson focused on whether something is “designed” for habitation? The usual phrase is “constructed or adapted” (or similar). A shed could have been designed as a shed but subsequently adapted so as to become suitable for habitation. What then? Once a shed always a shed?

Finally, what about property guardians? The places they live are, for the most part, not “designed for habitation” – part of the point of the property guardian model is that they provide security for vacant commercial property. Is a foreign national property guardian now a rough sleeper?

My third concern is that this is hugely overbroad. It apparently does not matter why you are sleeping rough. Imagine that you are a foreign national who has been unlawfully evicted and spent one night on the streets. You appear to fall within this policy. Imagine you are a foreign national who has spent a decade here and paid all your taxes and who misses the last train home so sleeps in a train station or on the night bus. That appears to be rough sleeping for these purposes. That is a staggering conclusion.

Now, it’ll be said against me that we’ll get more detail about how this will actually be applied when the Secretary of State produces detailed guidance to decision-makers. And, sure, I can imagine that we’ll want to see how the discretion under this provision is actually intended to be used. But I’m not expecting an enlightened approach.

 

 

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

10 Comments

  1. Alina Mihaela Nacev

    Good morning! I am Romanian, I have been illegally evicted on 02.06.2020. I ended up on the streets. I was a rough sleeper on the second and third day of June 2020. An outreach worker found me that night in a park. It was scary!
    My landlord tried to force me out of my home. I called the Police. A Police Officer told me: “you will get arrested if you don’t move out!” Should I have left the Police to get me arrested? Does the Police do evictions? I think that Police Officer did break the law by forcing me out of my home. I would like to take the Police to court for what it did to me. The Police must stop removing people out of their home! That’s a must!
    Permanent residence is my immigration status.
    Thank you very much for your advice!
    Alina

    Reply
  2. Eian Mantle

    This is an extension of the hostile environment that this government is so proud of and a subject upon which the Labour Party is remarkably silent. The best descriptor of a government setting a hostile environment under which those they govern must live is tyranny.

    Reply
  3. Ben Reeve-Lewis

    We’ve already seen the effects of the Right to Rent, in terms of it providing added income to criminals who dont care about the regulation, picking up the people rejected by the landlords who are too nervous to risk a breach. So now another business opportunity for them. “Its this cupboard under the stairs or deportation mate. Which would you prefer?” Speaking for the part of the Hostile environment that Safer Renting is involved in, “Thanks government, you’ve just created a new criminal business model”

    Reply
  4. Alex Andrews

    Another potentially problematic situation: what about if someone fell asleep on a bench on the way home from a big night out at the pub?

    Asking for a friend.

    Reply
  5. Phill Warren

    The definitional questions you raise are because they seem to have been lifted verbatim from the definition of rough sleepers in the Autumn Rough Sleeper Count/Estimate guidelines. Neither local authorities or groups such as Shelter have ever been happy with those guidelines, so it’s worrying indeed to see them become a formal definition.

    However Giles – “The local authority rings the Home Office and asks for their permission to remain in the UK to be cancelled. And, if it is cancelled then *puff*, the person is no longer eligible for assistance under Parts 7 or 2. A target is met. A statistic is recorded. A budget is preserved. ”

    That’s a pretty unfair portrayal of local authorities, and somewhat overplaying the sway you feel we have over Home Office decisions. Trust me, we’re lucky if we even get a response to enquiries most of the time, let alone be in a position to request someone’s permission to be in the UK be cancelled.

    A target is met? I don’t know about other Councils, but none of the ones I’ve worked in have ever had a target for the number of cases to be found ineligible.

    Reply
    • Giles Peaker

      The post is by J, not me, just to be clear.

      Reply
      • J

        It does say “some” and perhaps “not all”. I am generally sympathetic to the position of LAs but it would be naive to think that the scenario I outline would never happen. I also think there is a real risk that the Home Office will *require* you to provide this information to them. It’d be an easy way to introduce something akin to the Right to Rent scheme but for the public sector.

        Reply
  6. Chris

    I understand your point but this is arguably the same for any law.

    Laws restrict/forbid, restrictions cause scarcity, scarcity engenders (potential) profit. The business model / economics underlies everything inherently, what is criminal or not is determined by laws?

    I guess in this instance one hopes for corresponding focus or monitoring for the criminals these laws create/attract (to mitigate negative consequences) but I would share your doubt here…

    Reply
  7. Chris

    Chris on 26/10/2020 at 11:49 pm is in reply to @ Ben Reeve-Lewis on 25/10/2020 at 9:01 am , website didn’t indent (despite clicking on the Reply next to the comment…)

    Reply

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