Rough sleeping immigration rule: Who does it affect and how?

Hannah Cromarty

The Government has introduced a new immigration rule which means someone could have their permission to stay in the UK refused or cancelled, if they’ve been sleeping rough.

This Insight explains the new rule, when it fully takes effect and why it’s controversial.

What is the new rough sleeping immigration rule?

People applying for permission to enter or remain in the UK do so subject to the Immigration Rules. Part 9 of the rules sets out the general grounds for refusing or cancelling permission. Some grounds are mandatory, others are at the discretion of a Home Office caseworker.

People who don’t have permission to stay in the UK are liable to be removed.

On 22 October 2020, the Government laid a Statement of changes to the Immigration Rules before Parliament. The changes include a new discretionary ground for refusal or cancellation of someone’s permission to stay in the UK, on the basis that they’ve been sleeping rough.

The new paragraph, entitled ‘Rough sleeping in the UK’, states:

Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.
Where the decision maker is satisfied that a person has been rough sleeping in the UK any permission held by the person may be cancelled.

“Rough sleeping” is defined by the Home Office as: “sleeping, or bedding down, in the open air (for example on the street or in doorways) or in buildings or other places not designed for habitation (for example sheds, car parks or stations).”

Housing law specialists have criticised a lack of clarity in the definition and the broad scope of the rule. It’s contended it could potentially apply to someone spending just one night sleeping rough. It’s also unclear whether the rule could apply to historic rough sleeping.

Has Parliament approved the new rule?

Changes to the Immigration Rules are laid before Parliament in accordance with section 3(2) of the Immigration Act 1971. The Immigration Rules have a similar status to secondary legislation, and their approval process is similar to the negative procedure. This means they do not need active approval by Parliament.

The Secondary Legislation Scrutiny Committee did not specifically comment on the rough sleeping provisions, but was highly critical of the Government making changes to many immigration policy areas through a single statement, running to over 500 pages. The Committee said:

“Many of these policy areas are individually of significant interest to the House and to the public, so they would have been presented better as a series of themed instruments that would make effective scrutiny easier.”

Who is affected?

The new rule applies to non-UK nationals with temporary permission to stay in the UK. Certain migrant categories are exempt, including asylum seekers and people applying in the family and private life immigration categories.

The Government says the new provision will be used sparingly and only where individuals have repeatedly refused support offers, such as accommodation, and are engaged in persistent anti-social behaviour.

Rough sleeping is at its most severe in London, and a much higher proportion of people rough sleeping in London are non-UK nationals than in the rest of England. It’s estimated that half of those sleeping rough in London are from outside the UK.

Has it taken effect?

The new rough sleeping rule has applied to non-EEA nationals since 1 December 2020 and will apply to newly arriving EEA nationals from 1 January 2021.

Government guidance on the operation of the new rule is being finalised. Until that is done, the Government will not refuse or cancel a person’s permission to stay in the UK on grounds of rough sleeping.

Reaction to rough sleeping immigration rule

The new rule has been strongly criticised by several bodies including immigration and housing law specialists, charities in migrants’ rights and homelessness sectors, and local government representatives. It has been described as “draconian” and “inhumane”. The Government didn’t consult with interested parties prior to its introduction.

A key criticism is that the provision will “criminalise” rough sleeping and deter vulnerable people from seeking help, putting them at greater risk of exploitation.

Responding to the policy, Jon Sparkes, Chief Executive of homelessness charity Crisis, said:

It will push people who are in the UK legally and facing homelessness further into the fringes of society, rather than encouraging them to seek support.

While the government has stressed that this policy will only be used sparingly for people who refuse support, it is not as clear cut as this. We know through our services that people who have no recourse to public funds because of their immigration status have little or no access to support in the first place, and are forced into rough sleeping if they are unable to work…

Homelessness organisations are calling on the Government to instead implement positive approaches to support migrants rough sleeping out of homelessness. This includes removing the ‘no recourse to public funds’ conditions (which restrict eligibility to publicly-funded support such as welfare benefits and housing assistance) and the ‘right to rent’ policy.

It’s suggested that local authorities could use the new rule to avoid their legal duties to homeless migrants. However, the Greater London Authority and some local authorities have said they will refuse to cooperate with the Home Office on the new policy.

MPs have tabled a number of written parliamentary questions on the issue.

What happens next?

The Government is finalising guidance for decision-makers on the operation of the new rough sleeping rule and will make it available on GOV.UK.

A previous Home Office initiative to remove EU migrants who were sleeping rough from the UK was found to be unlawful. The Public Interest Law Centre is planning to bring a legal challenge against the new rule.