Notes on the Template Grounds of Appeal in EEA Rough Sleeping Cases

This template has been prepared to assist legal advisers (and unrepresented appellants) to deal

with appeals to the First-tier Tribunal (Immigration and Asylum Chamber) in cases where the

Home Office is seeking to remove a person for rough sleeping.

Background on the area of law

In May 2016 the SSHD introduced a policy which defined rough sleeping as an abuse of

rights. This policy was updated in February 2017 to define rough sleeping as a misuse of

rights. The policy states that even if a person is exercising Treaty rights they can be removed

if they are sleeping rough, since this is a misuse of rights.

We are of the view that this is fundamentally wrong in law. Cases have been brought in the

Administrative Court seeking the quashing of the policy European Economic Area (EEA) ad-

ministrative removal version 3.0, as well as a number of other remedies including damages

for unlawful detention.

Guidance on completing the grounds

The grounds are a template, but will not be suitable for every case. Items that need to be

specifically considered in each case are highlighted in yellow, but in every case legal advisers

(and unrepresented appellants) should check every line to ensure accuracy.

An IS.151A(EEA) and IS.151B(EEA) will have been completed by the Secretary of State in

every case, and will identify the grounds on which a person is to be removed. This template

is only suitable for cases where removal is on the basis of 23(6)(c). The IS.151A(EEA)

should identify the reason for removal. The IS.151B(EEA) may give the impression that re-

moval is based on both 23(6)(a) and 23(6)(c), but this is merely a pro forma: the decision it-

self will be contained on the IS.151A(EEA).

The grounds should be completed along with an IAFT-1 form (available at

https://formfinder.hmctsformfinder.justice.gov.uk/iaft001-eng.pdf). No fee is payable.

Counsel: Stephen Knight (1 Pump Court); Shanthi Sivakumaran (Lamb Building); Natalie

Csengeri (Farringdon Chambers)

Solicitor: Paul Heron, Public Interest Law Unit at Lambeth Law Centre

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IN THE FIRST-TIER TRIBUNAL(IMMIGRATION AND ASYLUM CHAMBER)

B E T W E E N :

[NAME] Appellant

- v -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

GROUNDS OF APPEAL

Introduction

1. The Appellant appeals against the decision of the Respondent to consider them liable to

administrative removal solely because of their alleged homelessness. The decision of

the Respondent is fundamentally wrong in law. The policy under which the Appellant’s

case is being considered is currently subject to more than 10 separate judicial review

proceedings [if applicable: (including by the Appellant)] due to its obvious illegality.

The Tribunal is invited to take one of the following two approaches:

(1) Immediately allow the Appellant’s appeal on the basis that the Appellant cannot

have misused their rights by rough sleeping; or

(2) Adjourn the Appellant’s appeal until the conclusion of the judicial review pro-

ceedings in the case of CO/1440/2017 Gunars Gureckis and CO/2384/2017 Mar-

iusz Perlinski, the two leading cases which have been granted permission to apply

for judicial review.

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Background facts

2. The Appellant is a national of [Country]. Their date of birth is [date]. [If applicable:

The Appellant is a permanent resident of the United Kingdom]. The Appellant has been

in the United Kingdom [length of time in the United Kingdom].

3. On [date of detention] the Respondent unlawfully detained the Appellant and they have

remained detained ever since. The Respondent purported to detain them in order to re-

move them on the sole basis that they are homeless. The Respondent knows that this is

not a ground for removal. The Respondent does not contend, and in her decision did

not contend, that the Appellant was removable for non-exercise of Treaty rights.

Summary of submissions

4. In summary, the Appellant’s grounds are as follows:

(1) “Misuse of rights” in the Immigration (European Economic Area) Regulations

2016 regulations 23(3), 23(6)(c), and 26 cannot be construed as including rough

sleeping.

(2) The enforcement of the policy on “European Economic Area (EEA) administra-

tive removal version 3.0” in respect of alleged rough sleepers is unlawful as it is

discriminatory on the ground of property.

(3) The enforcement of the policy on “European Economic Area (EEA) administra-

tive removal version 3.0” in respect of alleged rough sleepers is unlawful as it is

being applied systematically.

(4) The removal decision is unjust, unlawful, and an irrational application of the pol-

icy and the 2016 Regulations.

(5) [If the Appellant has exercised Treaty rights for 5 years, whether or not they were

homeless during that time: It is unlawful to seek to remove a permanent resident

for “misuse of rights”.]

Ground 1: “Misuse of rights” in the Immigration (European Economic Area) Regula-

tions 2016 regulations 23(3), 23(6)(c), and 26 cannot be construed as including rough

sleeping.

5. The Appellant cannot be removed under Regulation 23(6)(c) merely for rough sleeping.

Abuse of rights (or misuse of rights) can only be construed as engaging in “artificial”

conduct which aims to defeat the purpose of the Treaties.

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6. The general right to exclude under the EEA Regulations 2016 appears in regulation 23

(emphasis added):

“23. Exclusion and removal from the United Kingdom […]

(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—

(a) that person does not have or ceases to have a right to reside under these Regulations;

(b) the Secretary of State has decided that the person’s removal is jus-tified on grounds of public policy, public security or public health in accordance with regulation 27; or

(c) the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).

(7) A person must not be removed under paragraph (6)—

(a) as the automatic consequence of having recourse to the social assistance system of the United Kingdom; or

(b) if that person has leave to remain in the United Kingdom under the 1971 Act unless that person’s removal is justified on the grounds of public policy, public security or public health in accordance with reg-ulation 27.

[…]

(9) A decision taken under paragraph (6)(b) or (c) has the effect of terminat-ing any right to reside otherwise enjoyed by the individual concerned.”

7. Removal on the ground of misuse of rights requires that EEA Regulations 2016 regula-

tion 26 is satisfied (emphasis added):

“26.—(1) The misuse of a right to reside occurs where a person—

(a) observes the requirements of these Regulations in circumstances which do not achieve the purpose of these Regulations (as deter-mined by reference to Council Directive 2004/38/EC and the EU Treaties); and

(b) intends to obtain an advantage from these Regulations by en-gaging in conduct which artificially creates the conditions re-quired to satisfy the criteria set out in these Regulations.

(2) Such misuse includes attempting to enter the United Kingdom within 12 months of being removed under regulation 23(6)(a), where the person at-

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tempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for a right to reside, other than the initial right of residence under regulation 13, will be met.

(3) The Secretary of State may take an EEA decision on the grounds of misuse of rights where there are reasonable grounds to suspect the mis-use of a right to reside and it is proportionate to do so.

(4) Where, as a result of paragraph (2), the removal of a person under regu-lation 23(6)(a) may prevent that person from returning to the United King-dom during the 12 month period following removal, during that 12 month period the person who was removed may apply to the Secretary of State to have the effect of paragraph (2) set aside on the grounds that there has been a material change in the circumstances which justified that person’s removal under regulation 23(6)(a).

(5) An application under paragraph (4) may only be made whilst the appli-cant is outside the United Kingdom.

(6) This regulation may not be invoked systematically.”

8. The purpose of the EEA Regulations 2016, determined by reference to the Treaties and

Directive 2004/38/EC must be to promote free movement. TFEU Article 21 begins:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and con-ditions laid down in the Treaties and by the measures adopted to give them effect.”

9. This has been held by the Court of Justice of the European Union to confer a general

right to reside in another Member State. For example, in Zambrano C34/09 and a series

of cases that follow it, TFEU Article 21 (and Article 20, which is in similar terms) has

been interpreted as conferring a direct and strong right of residence on an EU citizen,

even an EU citizen who does not fulfil the criteria for the “right of residence” described

in Article 7 of Directive 2004/38/EC.

10. The only exceptions to free movement provisions are in relation to public health, secu-

rity, morals, etc., and in relation to abuse of rights and fraud, the only example of which

given by the Directive is sham marriage. The restrictions on rights of residence are

drawn in the most constrained of terms. The concept of abuse of rights clearly must be

interpreted restrictively.

11. In this regard reference must be had to the 2004 Citizen’s Rights Directive (Directive

2004/38/EC of the European Parliament and of the Council) which throughout the pre-

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amble (recitals 1, 2, 9, 10, 16, 21, 28) and Articles 6 and 7 promotes free movement of

people.

12. It is plain from the above that the concept of “abuse of rights” relates to artificial con-

duct which defeats the purpose which underlies the existence of rights. This point was

considered in the context of free movement of goods by the Court of Justice in C-

110/99 Emsland-Stä rke GmbH v Hauptzollamt Hamburg-Jonas as follows:

“52 A finding of an abuse requires, first, a combination of objective circum-stances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved.

53 It requires, second, a subjective element consisting in the intention to ob-tain an advantage from the Community rules by creating artificially the con-ditions laid down for obtaining it…

54 It is for the national court to establish the existence of those two ele-ments, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined”.

13. In the context of free movement of people this point was considered by the Court of

Justice in C-202/13 McCarthy and others v Secretary of State for the Home Department

as follows (emphasis added):

“54. In this connection, the Court has stated that proof of an abuse re-quires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the pur-pose of those rules has not been achieved, and, second, a subjective ele-ment consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgments in Hungary v Slovakia, C364/10, EU:C:2012:630, paragraph 58 and the case-law cited, and O. and B., EU:C:2014:135, paragraph 58).

55. In the absence of an express provision in Directive 2004/38, the fact that a Member State is faced, as the United Kingdom considers itself to be, with a high number of cases of abuse of rights or fraud committed by third-coun-try nationals resorting to sham marriages or using falsified residence cards cannot justify the adoption of a measure, such as that at issue in the main proceedings, founded on considerations of general prevention, to the exclu-sion of any specific assessment of the conduct of the person concerned him-self.

56. Indeed, the adoption of measures pursuing an objective of general pre-vention in respect of widespread cases of abuse of rights or fraud would mean, as in the case in point, that the mere fact of belonging to a particular group of persons would allow the Member States to refuse to recognise a right expressly conferred by Directive 2004/38 on family members of a

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Union citizen who are not nationals of a Member State, although they in fact fulfil the conditions laid down by that directive. The same would be true if recognition of that right were limited to persons who are in possession of residence cards issued by certain Member States, as the United Kingdom has envisaged.

57. Such measures, being automatic in nature, would allow Member States to leave the provisions of Directive 2004/38 unapplied and would disregard the very substance of the primary and individual right of Union citizens to move and reside freely within the territory of the Member States and of the derived rights enjoyed by those citizens’ family members who are not na-tionals of a Member State.”

14. Further, and of particular relevance to the present case, Article 35 of the Citizen ’ s

Rights Directive 2004 (Directive 2004/38/EC) provides as follows:

“Article 35 Abuse of rights

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be pro-portionate and subject to the procedural safeguards provided for in Articles 30 and 31.”

15. It is plain from the above that the concept of “abuse of rights” relates to conduct which

defeats the existence of rights or of legitimate restrictions which are placed on the exer-

cise of rights in order to protect other rights or important public interests.

16. The EEA Regulations 2016 introduced the concept of a “misuse of rights”, replacing

regulation 21B of The Immigration (European Economic Area) Regulations 2006. The

EEA Regulations 2006 addressed “abuse of rights” in the terms provided for in Euro-

pean law. The Respondent has accepted in R (on the application of Gunars Gureckis)

v Secretary of State for the Home Department CO/1440/2017 that “misuse of rights”

means “abuse of rights or fraud” and it would be procedurally improper for her to resile

from this now..

17. The Respondent’s 1 February 2017 Guidance on European Economic Area (EEA) ad-

ministrative removal version 3.0 asserts that rough sleeping may constitute a “misuse of

rights”. However, the correct interpretation to be given to “misuse of rights” or “abuse

of rights” concerns steps taken to avoid legitimate restrictions placed on rights (in the

words of the Guidance at page 15, “have engaged in conduct which appears to be in-

tended to circumvent the requirement to be a qualified person” or “have attempted to

enter the UK within 12 months of being removed under regulation 23(6)(a), and are un-

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able to provide evidence that upon re-entry, the conditions for any right to reside, other

than the initial right of residence, are met”).

18. No part of the 2004 Citizen’s Rights Directive could be interpreted as providing that be-

ing homeless in another member state is inconsistent with the intentions of the Direc-

tive, and therefore amounting to “abuse of rights or fraud”.

19. The Respondent’s Guidance, insofar as it treats homelessness or rough sleeping as

amounting to an abuse of rights or misuse of rights is simply wrong. There is no con-

nection between whether a person has accommodation and their exercise of their free

movement rights. The Respondent cannot unilaterally place limitations on established

fundamental freedoms set out in the TFEU. The Respondent has failed to demonstrate

how rough sleeping can amount to either (i) objective circumstances meaning that de-

spite formal observance of the rules, the purpose of the rules is not achieved; or (ii) the

subjective element showing an intention to obtain an advantage from the EU rules by

artificially creating the conditions laid down to obtain the same advantage. There is

simply no way identified by the Respondent that rough sleeping is an abuse of Treaty

rights.

20. The Guidance is unlawful and ought to be quashed, albeit this Tribunal does not have

the power to do so. However, it must be disapplied as it is inconsistent with European

law. As such the Respondent’s decision is unlawful.

Ground 2: The enforcement of the policy in respect of alleged rough sleepers is unlawful

as it is discriminatory on the ground of property

21. The Respondent has only taken action against the Appellant because they were consid-

ered by the Respondent to be rough sleeping. The Respondent has unlawfully discrimi-

nated against the Appellant by seeking to remove them for their perceived lack of prop-

erty.

22. The Guidance European Economic Area (EEA) administrative removal version 3.0 tar-

gets those who are street homeless. EEA citizens are therefore identified as “misusing

their rights” on the basis of their lack of property.

23. The 2014 Citizen’s Rights Directive provides:

“(31) This Directive respects the fundamental rights and freedoms and ob-serves the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In accordance with the prohibition of dis-crimination contained in the Charter, Member States should implement this

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Directive without discrimination between the beneficiaries of this Directive on grounds such as sex, race, colour, ethnic or social origin, genetic charac-teristics, language, religion or beliefs, political or other opinion, member-ship of an ethnic minority, property, birth, disability, age or sexual orienta-tion,[…]”

24. Article 21 of the Charter provides:

“Article 21 Non-discrimination

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, dis-ability, age or sexual orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.”

25. As such any application of a removals policy in a discriminatory manner against those

who are street homeless necessarily breaches the non-discrimination protection of the

Directive and the Charter on the basis that it discriminates on the grounds of property.

As such the Respondent’s decision is unlawful it is unlawful.

Ground 3: The enforcement of the policy in respect of alleged rough sleepers is unlawful

as it is being applied systematically

26. The Appellant was given removal directions to leave the UK as part of a policy being

implemented systematically to remove street homeless EEA nationals. There is over-

whelming evidence that the Respondent’s ICE teams target those who are street home-

less in systematic and routine operations. [If evidence such as academic reports are be-

ing advanced, set them out here.]

27. Article 14(2) of the 2004 Citizen’s Rights Directive prevents systematic application of a

policy of verifying that Treaty rights are being invoked. It provides as follows (empha-

sis added):

“Article 14

Retention of the right of residence

1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

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2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein. In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are ful-filled. This verification shall not be carried out systematically.

3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member’s recourse to the social assistance sys-tem of the host Member State.

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.”

28. Implementing this provision, the EEA Regulations 2016 regulation 26(6) (set out

above) prevents the Respondent from invoking regulation 23(6)(c) systematically.

29. The Respondent’s guidance and the evidence presented in support of the Applicant’s

claim makes clear that the Respondent is seeking to invoke 23(6)(c) systematically by

applying it to all those who she has assumed to be street homeless, solely by virtue of

their street homelessness. There is overwhelming evidence that the Respondent’s ICE

teams target those who are street homeless in systematic and routine operations. The

Respondent’s policy on European Economic Area (EEA) administrative removal ver-

sion 3.0 specifically targets rough sleepers, and under this policy the Respondent ac-

tively investigates and pursues those accused of rough sleeping. The decision in the

Appellant’s case is tainted with this illegality. As such the Respondent’s decision was

unlawful.

Ground 4: The removal decision is unjust, unlawful, and an irrational application of the

policy and the 2016 Regulations

30. Even if, which is denied, the Respondent could have found that the Appellant was “mis-

using” Treaty rights by virtue of being homeless, it was wrong in the circumstances of

this case.

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31. [If applicable: The failure to carry out an individual assessment when making the deci-

sion rendered it unjust, unlawful, and irrational.]

32. The Guidance is clear that not all rough sleeping will amount to a misuse of rights (e.g.

“Example 2”, in the Guidance). The Appellant’s individual circumstances must be

taken into account. A balancing exercise is required. In the present case the Respon-

dent has completely failed to consider the personal circumstances of the Appellant [if

applicable: in particular, that [details of materials not taken into account]].

33. [If applicable: Further, the Respondent used a pro forma with pre-printed reasons.]

34. This did not allow for individualised decision-making. The only factor taken into ac-

count was rough sleeping. [If applicable: The Respondent encountered the Appellant

and served removal directions on the same day without conducting an individualised as-

sessment or allowing the Appellant to provide evidence.] As such the decision was un-

just because of the serious procedural failings to make an individual assessment, in

breach of policy. [If applicable: Through the use of pre-printed reasons the Respondent

also acted unlawfully by fettering her discretion and finding the Appellant removable on

the basis of rough sleeping alone.]

35. In addition, Regulation 26(1)(b) further makes clear that in order for exclusion to be an

option, not only must one act otherwise than in accordance with the spirit of the Direc-

tive and the Treaties, but one must intend to obtain an advantage from the Regulations

by engaging in conduct which artificially creates the conditions required to satisfy the

criteria set out in the Regulations. This would be for example by leaving the country at

2 months 3 weeks when encountered by ICE, and re-entering. No such act has occurred

in this case. As such the Respondent’s decision was unlawful.

[If the Appellant has exercised Treaty rights for 5 years, whether or not they were

homeless during that time (if not, delete this whole ground): Ground 5: It is unlawful to

seek to remove a permanent resident for “misuse of rights”.]

36. A Union citizen who has been in the UK for five years acquires a right to permanent

residence. The right to permanent residence is realised by fulfilling the conditions set

out in the Regulations and not by the act of obtaining a residence card (Secretary of

State of Work and Pensions v Dias (Maria) [2009] EWCA Civ 31 at [38]).

37. In the present case the Appellant is a permanent resident, [if applicable: having consis-

tently worked whilst in the United Kingdom] (which the Respondent will be able to

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substantiate by checking with HMRC and the DWP). The Appellant has not lost perma-

nent residency. Therefore, the Respondent cannot seek to remove the Appellant and

save under [if the Appellant has been here at least 10 years: imperative; if the Appellant

has been here less than 10 years: serious] grounds of public policy, public security, or

public health. In the present case, the Respondent has not sought to rely on those

grounds: no deportation decision has been made.

38. The Appellant has a permanent right of residence under Article 16 of the Citizen’s

Rights Directive which provides as follows:

“1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chap-ter III. […]

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.”

39. Once an EEA National has acquired permanent residence, it is no longer a requirement

that the EEA national have sufficient resources or be economically active to continue

residing in the UK (C-424/10 and 425/10 Ziolkowski and Szeja v Land Berlin). There-

fore, the Respondent cannot lawfully seek to remove the Applicant for sleeping rough

(or for not exercising Treaty rights). Therefore, the decision is unlawful.

40. Insofar as the Respondent may claim that there is insufficient evidence to substantiate a

claim of permanent residence, it should be borne in mind that she has unlawfully de-

tained the Appellant from the time that the removal decision was made. Regulation

32(6) of the EEA Regulations 2016 permits a person one month to leave the United

Kingdom on their own, after a removal decision has been made: it is not a licence to de-

tain a person without a view to removing them, up until a one month period is passed.

The purpose of this regulation is to permit individuals to obtain evidence. To claim

there is insufficient evidence now, which is only because the Appellant has been unlaw-

fully detained, would be procedurally unfair. It is incumbent upon the Respondent to

carry out all relevant HMRC and DWP checks and disclose this material.

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Conclusion

41. Rough sleeping is not an abuse of rights (or “misuse of rights”). To treat it as such is

discriminatory. Its application to this case involves unlawful systematic verification.

[If this is a permanent residence case: Misuse of rights as a concept cannot apply to

those such as permanent residents who are not required to exercise Treaty rights.] The

decision of the Respondent is obviously unlawful.

[LEGAL ADVISER’S NAME]

[LEGAL ADVISER’S FIRM / CHAMBERS]

[DATE GROUNDS COMPLETED]

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