On 1 December 2020, a new version of Part 9 of the Immigration Rules came into effect.
Part 9 is headed “Grounds for refusal”. It contains grounds on which an application for entry clearance or leave to remain can be refused, and on which a person’s existing leave can be cancelled.
The new Section 4 of Part 9 says:
Rough sleeping in the UK
9.21.1. Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.
9.21.2. 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.”
Definitions are found in the new paragraph 6 of the Rules:
“Cancellation” … means cancellation, variation in duration, or curtailment, of entry clearance or permission, which can take effect immediately or at a specified future date and whether the person is in the UK or overseas.
“Permission to stay” has the same meaning as leave to remain under the Immigration Act 1971 (and includes a variation of leave to enter or remain and an extension of leave to enter or remain).
And references in these rules to a person having, having had or being granted “Permission” means either permission to enter or permission to stay.
“Rough sleeping” means 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).
Section 33(1) of the Immigration Act 1971 contains the following relevant definition:
“limited leave” and “indefinite leave” mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration
There is no discrete definition of “leave to remain” in the Act, except that using the definition above it would appear that it includes both limited and indefinite leave.
There are some important exceptions. The “rough sleeping” grounds for refusal do not apply to people applying in the following categories:
- Appendix FM (family members of British or settled people)
- Appendix Armed Forces
- Private life
- Appendix EU (the EU Settlement Scheme)
- Paragraph 159I (domestic workers who are victims of modern slavery or trafficking)
- ECAA arrangements for Turkish nationals, where the “adverse conduct” took place after 31 December 2020
However, this still leaves a lot of immigration routes affected by the rough sleeping grounds, including UK Ancestry, Global Talent, Student and Skilled Work.
Given the definitions provided in the Immigration Rules and the Immigration Act 1971, it is also not at all clear that a person who has indefinite leave to remain in any route is necessarily protected from the cancellation of that leave.
What does this mean?
@NearlyLegal has posted a useful summary of the rule changes in terms of housing law. This includes the problematic and overly broad definition of “rough sleeping”, and the effect of Part 9 on the obligations of local authorities to house people in need:
In immigration terms both paragraph 9.21.1 and paragraph 9.21.2 are discretionary grounds for refusal or cancellation. The decision-maker does not have to refuse a person’s application or cancel their visa if they have been rough sleeping, but they may do so.
The old guidance about discretionary grounds for refusal, and curtailment (“Curtailment” v.18 19 December 2019; and “General Grounds for Refusal Section 4” v.29.0 11 January 2018) give some outline of things that a decision-maker should consider, but the tendency is to treat refusal as the norm.
On 1 December 2020 the Home Office also produced new guidance about some of the specific grounds for refusal in the new Part 9. For example, guidance about discretionary refusals under paragraph 9.19 based on customs breaches sets out considerations based on “whether it is proportionate to refuse or cancel permission”. This includes taking into account things like how recent the breach was; the seriousness of the breach; the person’s ties in the UK etc. (“Grounds for refusal – customs breaches” v. 1 1 December 2020).
However, as at 4 December 2020 there is not yet any guidance for the paragraphs about rough sleeping.
In response to a question by the Immigration Law Practitioners Association, the Home Office said:
“… guidance… has not yet been finalised. However the SSHD will not rely on the Rough Sleeping Rule to refuse or cancel leave to remain until after the guidance has been published.”
The lack of guidance is a huge problem: How recently and for how long must a person have slept rough for the Home Office to consider them to “have been rough sleeping”? How will rough sleeping come to the Home Office’s attention, and will applicants need a knowledge of its legal definition in order to complete their application form correctly? How will the discretion inherent in the rule be exercised?
The powers to cancel permission are of particular concern: cancellation includes curtailment of leave to remain (i.e. shortening it so that it ends on a date in the future), but it can also mean cancellation without notice. When leave to remain in the UK is cancelled in this way, the only way to preserve lawful residence in the UK (under section 3C of the Immigration Act 1971) would be to submit a new application for leave (or an application for a fee waiver) on the same day: presumably this would be refused on rough-sleeping grounds as well.
A person who has slept rough at some stage may well also not be in a position to keep the Home Office updated about their contact details: it is not uncommon for the Home Office to send curtailment decisions to an old address, or for Home Office email correspondence to end up in the spam or junk folder.
There is no right of appeal or administrative review of a decision to cancel leave (“Curtailment” v.18 19 December 2019 p. 101), meaning that the only remedy to cancellation is Judicial Review.
There is a right of appeal to the First Tier Tribunal in cases where a human rights or protection claim has been refused: where a person has applied for permission to stay in the UK but been refused because they “have been rough sleeping”. However, the Home Office is restrictive in what it considers a “human rights claim”: in most cases only applications made under Appendix FM, or under the private life and long residence provisions of the Immigration Rules are counted.
Applicants in categories that are not considered to be human rights claims can usually only rely on an “administrative review” rather than an appeal. In an administrative review, the Home Office re-examines its own decision based on the paperwork it already has. It is only possible to apply for administrative review on a limited number of grounds. If it is unsuccessful, then the only further remedy is Judicial Review.
There are strict time limits for appeals, administrative review, and Judicial Review applications, which a person who is unaware of a refusal or curtailment decision is likely to miss.
I will update this post as and when the Home Office releases further guidance.
If you have questions or concerns about the new Immigration Rules, please contact me using the contact form on this website, or the details below.
Kitty Falls Immigration Law
Tel: 07752 722 292
4 December 2020