Gureckis, R (On the Application Of) v Secretary of State for the Home Department

Rough sleeping by an EEA national cannot, without more, constitute misuse of the right to freedom of movement and residence. Regulation 26 of the Immigration (European Economic Area) Regulations 2016 requires both conduct outside the purpose of the EU rules and an intention to obtain an advantage by artificially creating the conditions for residence. Rough sleeping is not connected to the possession of identity documents, worker status or jobseeker status, and does not artificially create those conditions. A policy targeting EEA nationals sleeping rough on that basis is unlawful. It also involves systematic verification where rough sleepers are targeted because the policy presumes misuse, rather than because of an individual reasonable doubt.

Three linked judicial review claims challenged the Home Secretary’s guidance on administrative removal of EEA nationals found sleeping rough. The claimants argued that the policy unlawfully treated rough sleeping as misuse of EU residence rights, discriminated against EEA rough sleepers, and required systematic verification of residence conditions.

The challenged guidance permitted removal under regulation 23(6)(c) of the Immigration (European Economic Area) Regulations 2016. The central issue was whether rough sleeping could itself establish misuse of Treaty rights.

1. Claims granted. The guidance was unlawful insofar as it treated rough sleeping, whether intentional, harmful or otherwise, as misuse of Treaty rights.
2. Regulation 26 had to be interpreted in accordance with EU law. Misuse required both objective circumstances in which formal compliance failed to achieve the purpose of the EU rules and an intention to obtain an advantage by artificially creating the required conditions.
3. The first limb was not satisfied. Free movement included an individual citizenship right, not merely an economic or social benefit to the host state. The Treaties and Directive contained specific provisions addressing social assistance and public-policy removal. Rough sleeping was unrelated to the conditions for residence.
4. The second limb was not satisfied. Rough sleeping could not artificially create the initial right of residence, which depended on an identity document, or worker or jobseeker status, because it was not economic activity.
5. The policy discriminated against EEA rough sleepers. Its proposed justification depended on the unlawful premise that rough sleeping constituted misuse.
6. The enforcement operations involved systematic verification. Rough sleepers were questioned because the policy presumed misuse, rather than because an individual reasonable doubt existed. Individual questioning could be lawful where such a doubt genuinely arose.
7. The version 3.0 guidance was quashed to that extent. Mr Gureckis’s removal notices were quashed. Relief was refused to Mr Cielecki because his removal decision rested on an independent basis upheld by the First-tier Tribunal. Wider declarations were refused. Costs were ordered in favour of the claimants, subject to detailed assessment.

First-instance judicial review claims in the High Court (Administrative Court). Permission was granted by Ouseley J on 12 July 2017 after initial refusal on the papers. The claims were determined by Lang J on 14 December 2017.