‘You can’t criminalise your way out of homelessness’: UN expert warns of politicians attacking rough sleepers

“You can’t criminalise your way out of homelessness. How many people are you going to keep arresting?”

This is the message Balakrishnan Rajagopal, the UN special rapporteur on the right to adequate housing, will deliver to representatives at the UN Human Rights Council in Geneva.

His new study finds growing evidence that people experiencing homelessness and poverty are facing criminal penalties for simply sleeping, washing, cooking, eating, begging and working on the street.

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The report was published on Tuesday (25 June) last week. On Friday (28 June), the US Supreme Court ruled that cities can punish unhoused people for sleeping in public, even if they have nowhere else to go. The judgment, described in the US as the “most consequential decision in history on homeless rights”, ruled that criminalising rough sleeping does not constitute “cruel and unusual punishment”.

We see it in the UK, too. Only last year Suella Braverman as home secretary called rough sleeping a “lifestyle choice” while announcing plans to crack down on the pitching of tents in city centres, which she largely blamed on individuals “from abroad”.

These draconian measures, which included threats of prison or £2,500 fines and at one point pledged enforcement action over “smells”, formed part of the Conservative government’s Criminal Justice Bill.

That law will likely never come to pass now with Labour set to form the next government, but the 200-year-old Vagrancy Act is still in use in the UK, and it’s not just the US and the UK – similarly punitive measures are used across the world.

“It happens in too many countries,” Rajagopal tells the Big Issue. “Busting people’s shacks and using violent force to clear their encampments or their lean-tos and throw them into the back of a truck, leaving them with nothing. This is a very common occurrence. And there’s hardly anyone to monitor what happens.

“This is true even in countries like South Africa, where the right to housing is constitutionally protected. The eviction and clearance operations are outsourced to private companies. They [the authorities] don’t really see people who are living like that as having any rights at all.”

Rajagopal, a professor in the department of urban studies and planning at the Massachusetts Institute of Technology (MIT), blames resurgent far-right or right-wing governments that have little interest in tackling the root causes of homelessness.

“Instead of addressing the global affordable housing and inequality crises, which are primarily responsible, governments are increasingly turning to outdated and vague vagrancy laws, many of which have their roots in colonial rule, to move people off the streets and make them disappear,” he says.

“It is politically convenient, and bows to populist pressure, to criminalise vulnerable people.”

Rajagopal cites “discriminatory” land use regulations, such as density restrictions, as well as zoning as examples of structural barriers to affordable housing supply.

“People don’t want to touch them because they are inherited from the past and protect the property interests of people who dominate those societies,” he says. 

“But the reality is you cannot get more affordable housing unless you change these rules. Take something as simple as density restrictions. They look like neutral rules but they were put in place by property owners because they don’t want ‘undesirable’ people to move in – people who live in more dense urban environments are people with less means. So there’s a class bias, and also an implicit racial bias.

“Then you have zoning in Latin America countries, and the US, which legally prevents affordable housing from being built.”

Rajagopal uses the example of San Diego, California, where he was shocked to learn more than 70% of the land is zoned for single family homes, meaning multi-family homes [such as blocks of flats] simply can’t be built.

What does society gain by being in the centre, if the centre is defined in a way that excludes so many people?

As we’ve seen in the UK, migrants are often scapegoated when it comes to the housing crisis, and that’s also the case elsewhere, including the Global South, Rajagopal says.

“It’s the foreigners, the people who don’t look like us, that are demonised, although they are not the root cause of housing problems people are facing. People are facing housing problems because of gross mistakes and errors and violations of the law that have been committed over decades. But it’s more convenient to blame somebody who doesn’t look like you. It’s a common strategy.”

Not only will these tactics not solve homelessness or poverty, they are in “direct violation” of the international human right to adequate housing.

“It’s an uphill struggle to get countries to recognise economic, social and cultural rights such as the right to housing,” Rajagopal adds. “Particularly in hyper capitalist environments. Here in the US, a prime example, they still won’t accept economic or social rights as human rights in any meaningful sense.”

What’s more, as we’ve seen in the UK, there’s a push back against human rights in general, let alone housing as a human right. Housing First has proven to be a successful model in some countries, but it’s a non-starter in places without the resources to implement it. So how can these problems be fixed? After all, a lot of the recommendations in his report will be seen as too radical – such as banning evictions that cause homelessness and reforming the justice system.

Rajagopal knows this, and admits: “If those with a xenophobic tendency to defend the status quo who don’t want any kind of positive change continue to retain or increase power it’s going to be much harder to achieve progress.”

But he says there are ways to realistically shift the dial. One is to reframe the issue as “a struggle to keep and safeguard everybody’s existing constitutional rights”. 

“These are things everyone should care about because if they can do it to some people they can do it to others,” he says, citing the recent election in India and last year’s vote in the Netherlands as examples where this had an impact. “It resonated much more among poor people that their constitutional rights would be limited if the far-right got more power.”

Another way is to make a business case for non-criminalised responses.

“People need to point out that the cost of criminalising homeless people and using the criminal justice system is not cheap, and costs way more than other strategies,” he says. “For example local government costs. If the security budgets keep ballooning – is that really what they want? Don’t they have other priorities, especially at a time of massive climate change impacts. Can they police their way out of climate change?”

Rajagopal again references California, where activists are trying to tackle the huge housing crisis by campaigning for the state constitution to recognise the right to adequate housing.

“They don’t have any hope in the federal constitution because amending that is next to impossible,” he says. “But changing the state constitution is viable and could shift the narrative. The courts, the government, they can’t ignore the constitution once it’s changed. It’s a very strong first step.”

Here in the UK, there is hope that things will improve under a Labour government. But the party has been accused of baking austerity into its manifesto, and has made no commitment around the Vagrancy Act. It has, however, vowed to get tough on anti-social behaviour and bring in “tough new penalties for offenders”.

Rajagopal has a message for supposedly left of centre parties such as Labour.

“You don’t create a fair and decent society by constantly demonising a group of people and sending them off to jail,” he says. “There is not enough mobilisation around that – because you get dubbed as ‘far-left’ or the extreme wing of the party. In the US if you say housing is a human right you are a democrat but on the far-left of the party, not the mainstream. 

“The idea that being in the centre is a good thing is a strategy that unfortunately has been seen as the most acceptable path by too many people. But they don’t ask: ‘What does society gain by being in the centre, if the centre is defined in a way that excludes so many people?’.”

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