If Theresa May wants EU nationals to stay, she should know better than to deport rough sleepers

The government’s policy on EU and EEA nationals is muddled and unclear. Recently, Theresa May wrote a conciliatory open letter to EU nationals, in which she encouraged them to stay in the UK and contribute to the economic, social and cultural fabric of the country.

However, the Home Office guidance and policy does not reflect those sentiments. On Thursday, the High Court struck down the government policy to deport rough sleepers from the EU and European Economic Area (EEA) as illegal and discriminatory.

The policy itself was implemented in February 2017, in response to a marked increase in EEA and EU nationals sleeping rough in the UK. It involved a systematic verification of the immigration status of rough sleepers, followed by deportation. The government seemed to have come up with a clever idea to tackle the rise in rough sleeping – making it someone else’s problem.

Systematic verification is redolent of totalitarianism and something that is strictly forbidden under EU and UK law. Three EU nationals supported by a crowdfunded campaign brought the case, arguing that the policy was illegal and discriminatory as it was deliberately targeting people because of their nationality.

It’s a difficult balance for policymakers, who want to have control over immigration but must use their powers in a proportionate and fair manner. In this case the High Court found that the policy and its implementation were too draconian and without proper legal foundation.

“The right of an individual EU citizens to reside in another Member State is not solely for the economic and social benefit of the Member State; it is an individual right of citizenship which may be exercised even where there is no discernible economic or social benefit to the Member State from the presence of the particular individual.”

In other words, the UK is not required to provide support and funding for everyone from the EU, but using rough sleeping as a blanket criterion for deportation is too crude a measure, and one that lacks a proper foundation in law. The government didn’t appeal the verdict.

The case is a microcosm of the problems facing the government and society. The tension between immigration controls and economic prosperity; the inability to deal with poverty and housing, whatever nationality you are and the dramatic cuts to legal aid, which meant that the case, as mentioned above, had to be crowdfunded. Rough sleepers were perhaps an easy target – the people least likely to have networks able to support them and fight for their rights, and the ones most easily forgotten. However, that policy seems tinged with anti-EU sentiment rather than a proper attempt to control immigration. Were it not for the lawyers fighting this case they would be forgotten, unrepresented, marginalised, and unceremoniously shipped off.

Some will seize on this judgment as an excellent example of why we should leave the EU; a prime example of interference by Brussels (or the Court of Justice in Luxembourg to be more precise) demanding that the UK take the homeless and beggars. For my part, though, it is about how the most vulnerable in society are treated. Nationality should not make a difference. The right to free movement confers more than economic benefits on the UK, but those benefits come with costs as well. And one of those is the need to care for the most needy and vulnerable, whoever they are and wherever they come from.

This article was originally published by the NewStatesman on 15 December 2017 and can be viewed on their website here.

Ben Keith is a barrister specialising in Extradition, Immigration, Serious Fraud, Human Rights and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, as well as applications and appeals to the European Court of Human Rights (ECHR). He has particular expertise in human rights and extradition proceedings in post-soviet states including Russia, Ukraine, Azerbaijan, Moldova and Kazakhstan. Ben is ranked in Chambers and Partners as a band 1 leader in the field of Extradition at the London Bar.