Gureckis, R (On the Application Of) v Secretary of State for the Home Department  EWHC 3298 (Admin) (14 December 2017)
Mrs Justice Lang :
1) These three linked claims for judicial review have been selected as test cases in which to consider the lawfulness of the Defendant’s policy, and its application, to EEA (European Economic Area) nationals found sleeping rough in the United Kingdom (“UK”). The version of the policy challenged in these claims was contained in the Defendant’s guidance to immigration officers entitled ‘European Economic Area (EEA) administrative removal’, version 3.0, published 1 February 2017. The guidance set out the circumstances in which rough sleeping would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal, if proportionate to do so.
2) The Claimants and the AIRE Centre submitted that the policy was unlawful because rough sleeping could not constitute an “abuse of rights” under article 35 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”), as implemented by regulation 26 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). Furthermore, the policy discriminated unlawfully against EEA nationals and rough sleepers and the application of the policy involved unlawful systematic verification.
3) Permission to apply for judicial review was initially refused on the papers, Ouseley J. granted permission to apply for judicial review at an oral hearing on 12 July 2017. Other similar claims have been stayed pending the outcome in the test cases. The outcome of the test cases will also be relevant to pending tribunal appeals against decisions to remove.
4). The AIRE Centre was given permission to make written, but not oral, representations as an intervenor. I gave careful consideration to Mr Kennelly QC’s well-crafted written submissions.
- For the reasons set out above, the claims for judicial review are granted.
- The parties asked me to give guidance on the lawfulness of the Defendant’s proposed revised policy, which provided a more nuanced response to the issues. I declined to do so for the following reasons. None of the test cases before me concerned the proposed revised policy. The revised policy was at planning stage; only a summary was available, not the full text. It had not yet received ministerial approval. The summary was published shortly before this hearing, on 30 October 2017. It was only referred to briefly by Mr Lamont and by counsel. The AIRE Centre has not made representations upon it. It remained part of the proposed revised policy that rough sleeping may be an abuse of rights. In view of the conclusions in this judgment, I suggest that the better course is for the Defendant to take stock and re-consider the terms of the proposed revised policy, in the light of advice from her legal advisers.
- Following circulation of my draft judgment, I received written representations on remedies from the parties.
- All parties consented to a quashing order in the following terms:”The Defendant’s guidance, “European Economic Area (EEA) administrative removal”, version 3.0, published 1 February 2017, is quashed insofar as it treats rough sleeping, whether intentional, harmful or otherwise, as an abuse of Treaty rights.”
- I granted Mr Gureckis an order quashing the removal notices which were served upon him. The Defendant opposed a similar order in the case of Mr Cielecki. Judicial review is a discretionary remedy, and in the exercise of my discretion, I refused to grant Mr Cielecki an order quashing the removal notices served upon him. Although he was initially questioned because he was sleeping rough, the decision to issue removal notices was made on the basis that he was not exercising Treaty rights. The lawfulness of the decision to remove him on that basis was upheld by the FTT, and his applications for permission to appeal were refused. Thus, the issue of the removal notices has not caused him any injustice, and it would be futile to quash them since the Defendant could, and would, immediately re-issue them.
- The Claimants applied for wide-ranging declarations, reflecting the grounds upon which they were successful in the claim for judicial review. The Defendant consented to the applications. However, I refused to grant the declarations sought, as I considered that they were unnecessary and inappropriate. The quashing orders provided the individual Claimants with appropriate relief for the unlawful acts committed against them. The quashing of the current guidance also provided relief for others affected by the Defendant’s policy. My judgment set out in some detail the complex legal basis upon which I upheld the Claimants’ grounds of challenge. I considered it was potentially misleading to elevate brief summaries of my conclusions into free-standing declarations of law.
- The Defendant agreed to pay the reasonable costs of each Claimant and I ordered detailed assessment of the Claimants’ publicly funded costs.