Back in October 2020, we covered the introduction of new 9.21.1 and 9.22.2 of the Immigration Rules (here). In outline, these created a power for the Secretary of State to refuse an immigration application where the applicant was a rough sleeper or to cancel an existing permission for the same reason.

Aside from the inhumanity of it all, we noted that the drafting of the rule was defective. It failed to define key terms and was both under and overinclusive. On 15 April 2021, the Secretary of State published guidance designed to meet some of these criticisms, which can be found here.

First, the rule itself has been amended to explain that is only applies where the rough sleeper “…has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour…”. In this regard, the guidance draws attention both to s.189B, Housing Act 1996 and s.1, Localism Act 2011. Now, this needs some care. If you’re “eligible” for the purposes of Pt.7, Housing Act 1996, then you’re not going to need s.1, 2011 Act. But if you are not eligible then you probably can’t use s.1 (see R (Ncube) v Brighton). As NL says, this is why everyone needs a housing lawyer at all times.

Perhaps more importantly, the guidance explains that a decision-maker cannot conclude that someone has failed to engage with support services where none had been offered. Or, to put it another way, if the SoS wants to use this power, she’ll need to be satisfied that suitable support has been offered and unreasonably refused first.

Secondly, the guidance explains that it is not intended to catch those who “… inadvertently find themselves temporarily without a roof over their head.” What that seems to mean, in context, is that there needs to be a certain period of time to the rough sleeping. Ffor example, someone who had missed the last train home and was sleeping in the station was not to be treated as a “rough sleeper” even if they otherwise met the definition in the immigration rules.

It’s still an awful policy, but it’s now (perhaps) slightly less odious.