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.