The Home Office has published its guidance on refusing and cancelling rough sleeping migrants’ permission to stay in the UK. In this blog, we outline its content and analyse the likely implications for migrants experiencing or at risk of labour exploitation, especially in the context of recent and proposed wider changes to the UK’s immigration and anti-trafficking policies.

Last year, the Home Office announced a new immigration rule which gave grounds to refuse or cancel someone’s permission to stay in the UK if they were found rough sleeping. Expected to come into effect on December 1st 2020, its implementation was halted after hundreds  of stakeholders wrote to Ministers urging them to reconsider these plans. Experts raised concerns that this policy would push migrants away from support services and into exploitative situations.

As a response, the Home Secretary confirmed that this new rule would only come into force once guidance was published. The guidance, published last Tuesday (20 April), outlines when someone’s permission to stay can be refused or cancelled on the grounds of rough sleeping in the UK.

Who can have their permission cancelled or refused for sleeping rough?

Under this guidance, migrants can have their permission to stay refused or cancelled if they repeatedly refused suitable offers of support and/or engaged in persistent anti-social behaviour.

While not applicable to all cases, the Home Office suggests that after refusing support over a period of approximately three months, “it would be appropriate” to consider someone for removal under this policy. However, in making this assessment, the Home Office must consider whether the support offered was appropriate to the person’s individual needs. The guidance sets out that support to migrant rough sleepers in this context is beyond assistance to secure accommodation, and may also include help looking for work, accessing benefits, support services for alcohol, substance misuse or mental health issues, applying for leave to remain, referral into the National Referral Mechanism and applications to voluntary return schemes, if the migrant wants to return.

It acknowledges that a significant number of migrants are not entitled to statutory support, including those with ‘no recourse to public funds’, which is the case of many migrants on work visas. In those cases, the guidance is clear that no action should be taken against those who have no support available to them or who have exhausted all avenues for support. Migrants who have not been offered assistance or are engaged in support must also not be considered under this policy.

In relation to anti-social behaviour, the Home Office provided a non-exhaustive list of factors which should be considered in assessing whether someone has engaged in persistent anti-social behaviour. Even in these circumstances, the Home Office must ensure that the person was offered support before considering cancellation or refusal to their permission to stay.

Decision to refuse or cancel someone’s permission to stay in the UK “must be reasonable and proportionate” and should account for factors such as the circumstances that led them to sleep rough, vulnerabilities that prevent or make it difficult for them to engage with support services, length of stay in the country, the nature of an anti-social behaviour, among others. All relevant evidence and information must be fully evaluated before a decision to refuse or cancel their permission is taken. Decisions must be served in person, and if there is a significant gap between the decision and notifying the individual, the Home Office must consider their current circumstances, including whether they are now engaged in support or no longer rough sleeping.

The guidance also clarifies that it does not apply to people who have been:

• granted or are eligible for pre-settled and settled status under the EU Settlement Scheme, including those who have ‘reasonable grounds’ for missing the deadline for applications (30 June 2021)
• granted indefinite leave to remain
• granted leave under a protection route, including refugees, people with protection under humanitarian or human rights grounds and discretionary leave to remain

Wider changes to the UK’s immigration and anti-trafficking policies

The new rules on rough sleeping and its related guidance come amidst wider changes to immigration and anti-trafficking policies. In late February, the Home Office published a draft guidance on ‘Adults at Risk in immigration detention’ which amends the way potential trafficking victims’ suitability for immigration detention is assessed. Under the amended policy, there is a high chance that more potential victims will be detained and for longer periods of time, as FLEX and partners have raised and the Home Office confirmed. This fear coupled with the lack of avenues for parliamentary scrutiny have led over 80 parliamentarians to call for an annulment of these changes. Yet, despite widespread concern, the revised guidance is set to come into force in late May, with further changes to the Home Office’s policy on vulnerable people in detention being expected which could see more protections eroded.

Adding to this, the Home Office is planning a wider restructuring of the UK’s immigration system, which includes changes to the asylum system and the identification and support framework for trafficking victims. There are significant concerns that these changes will lead to an increased risk of exploitation and a decrease in reporting situations of exploitation as migrants fear that they will suffer negative repercussions from coming forward to public authorities for help.

What does this mean for migrants at risk or who experienced labour exploitation?

Many of these changes are being proposed and adopted with minimal consultation, and there are genuine concerns about how these policies, individually and collectively, are leading to an erosion of migrants rights while putting them at increased risk of exploitation.

Considering the recently published guidance on removal of rough sleepers, little attention has been given to how policies like this affect migrants’ perception and willingness to engage with services that could put them at risk of negative immigration consequences. Even if the guidance clarifies that authorities should focus on each individual’s needs and vulnerabilities first and foremost, the expansion of policies that ask statutory services to help enforce immigration policy serves to push migrants away from much needed support and into the hands of exploitative employers and networks.

Migrants already face significant barriers to accessing support, including language barriers, limited knowledge of their rights and where to go for assistance. Opening up avenues to cancel and refuse migrants’ permission to stay in the UK as a result of sleeping rough risks making it even harder for them to seek help and trust statutory services. It goes directly against the UK’s ongoing commitment to prevent and address modern slavery. Instead, the UK should ensure that its policies do not create or exacerbate risk, and open secure and accessible avenues for migrants to seek support when they need it.