How we forced the government to abandon cruel rules targeting foreigners who are rough sleeping

This government is developing a track record of introducing cruel but utterly impractical rules to attract headlines, then wasting significant public funds defending its position in court. No, not the Rwanda deportation scheme. On 1 December 2020, the government changed the immigration rules to punish rough sleeping by making it a reason to refuse or cancel somebody’s existing permission to be in the UK.

After a two-year wait, Refugee and Migrant Forum of Essex and London and Public Interest Law Centre have been refused permission by the High Court to judicially review the government’s rough sleeping rule. It has come as a result of our first challenge to this rule, which made it so unworkable that it has not been used once.

Many of the people we work with are foreign nationals who do not have access to shelter, and under this law, they would have faced enforcement action and potentially removal, severing them from loved ones and their local community for the ‘crime’ of being homeless.

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Recognising that this was a cruel measure designed to punish some of the most vulnerable people in society, Refugee and Migrant Forum of Essex and London (Ramfel) instructed the Public Interest Law Centre to challenge it the very next day, formally writing to the government to request that the rule be repealed. We sent them a detailed report evidencing the potential effect of the new rule on non-UK nationals who were rough sleeping.

This report detailed how, rather than decreasing the number of non-UK nationals sleeping rough, these new measures would likely achieve the exact opposite by making foreign nationals even more reluctant to engage with the limited support services available due to fear of immigration enforcement, in a repeat of the misguided measures taken between 2010 and 2017. Alongside our legal challenge there was a strong and united opposition from the voluntary sector, local authorities and trade unions. As with so many of this government’s other immigration policies, they were explicitly advised that not only was it cruel but also counter-productive.

In response to our first correspondence, the government amended the rule and published guidance in April 2021, which so severely restricted the original amendment that it made the rule effectively unworkable. In practice, the rule is now only applicable if a person has repeatedly refused offers of suitable support and has engaged in persistent so-called “anti-social behaviour”. We decided to further challenge this to scrap the rule altogether.

Given the rule on rough sleeping has not been used once, this has made our second legal challenge difficult. We have decided to accept the decision from the court but we will continue monitoring whether or not the rule is being implemented and challenging the government in cases where they are abusing or misapplying it.

Although the government was forced to change its position, we remain concerned that its mere existence in the immigration rules leaves it open to abuse, particularly for people who are rough sleeping and find it hard to engage with services as a result of mental health difficulties and whose behaviour may be construed as ‘anti-social’.

The government has made a habit of this sort of nasty posturing, introducing legislation and rules that are little more than impractical, but immeasurably cruel, publicity stunts designed to appear ‘tough’ without actually addressing the real problems within the UK’s immigration and asylum system. Take the Rwanda policy recently struck down in the Court of Appeal, or the government’s so-called U-turn on its policy to block trafficking victims from protection by requiring them to provide evidence of their own enslavement up front.

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The government’s entire Illegal Migration Bill (which simultaneously requires the home secretary to remove practically every asylum seeker without any notion of where they would be sent), although impossible to implement, has been an effective vehicle for the home secretary to attract headlines. In addition to the costs of the policies themselves, the government spends vast sums defending them in court, even though they are often defeated or are forced to effectively abandon the rule/policy in question before a judge considers it. This is not to mention the fear these laws strike into the communities affected.

We are pleased to have averted a harmful onslaught against some of the most vulnerable people. However, we remain deeply concerned about this government’s willingness to abuse the legislative process. Together with other organisations, trade unions and activists we will continue to fight and defeat the government’s cruel and unlawful plans to target and dehumanise migrants in the UK.

Jean Demars is the director of the Public Interest Law Centre and Nick Beales is the head of campaigning at Refugee and Migrant Forum of Essex and London

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