New power to deport rough sleepers may discriminate, Home Office admits in new doc

The Home Office has admitted that a new immigration rule enabling the deportation of migrant rough sleepers may indirectly discriminate against disabled people and ethnic minorities, including Asian women who have survived domestic violence.

An official document obtained by Liberty Investigates under Freedom of Information law outlines the department’s analysis of how the controversial new power – which came into force on 1 December last year, but has not yet been used – will affect at-risk groups.

The eight-page Equality Impact Assessment recognises that disabled homeless people “may experience greater disadvantage” if deported to countries with poor access to support services. Disability affects a large section of the UK’s homeless population, with Scottish figures showing more than half those seeking help for homelessness were also in need of support for conditions such as mental health issues, substance dependencies and learning disabilities.

The document also accepts the potential of the rule to indirectly discriminate on the grounds of race, since some factors leading to homelessness disproportionately affect people from particular ethnicities. “For example, the main reason Asian women give for being homeless is because of domestic violence,” it notes.

The disclosure comes days after the Home Office was forced to sign a legal agreement with the Equality and Human Rights Commission, which last year found the department had failed to consider the impact of its much-maligned hostile environment policies on the Windrush generation.

The new immigration rule makes rough sleeping grounds for deporting someone or denying them a visa, but immigration staff have been told not to use it until official guidance is published on how it should be applied.

According to the report, the power – which is discretionary – will be used on “those who have chosen to refuse support offered and to engage in anti-social behaviour which causes harm to other individuals or to wider society”. It remains unclear how officials will define the “[refusal of] support offered” or “anti-social behaviour which causes harm”.

The document states that any indirect discrimination caused by the rule – on the basis of race, disability, or any other protected characteristic – can be justified by “the legitimate aim of protecting the public”. It adds that a key “guard against discrimination” will be the discretion of Home Office decision-makers to consider if a person’s disability, for instance, contributed to their becoming homeless, or if they would be “particularly disadvantaged” by deportation.

A Home Office spokesperson told Liberty Investigates that the policy does not unlawfully discriminate. This has been disputed by the Refugee and Migrant Forum of Essex and London (Ramfel), which has launched a judicial review over the rule along with the Public Interest Law Centre (PILC).

The spokesperson added that decision-makers are “rigorously trained” to take account of factors such as disability and race. But campaign groups warned that Home Office discretion is not an adequate safeguard for vulnerable people, citing failures such as the Windrush scandal which – according to an independent review – revealed “institutional ignorance and thoughtlessness” over race at the Home Office.

“The Home Office is widely believed to be institutionally racist,” said James Tullett, chief executive of Ramfel. “The idea of the Home Office using its discretion feels like a guarantee of discrimination rather than a safeguard.”

Chai Patel, legal policy director of the Joint Council for the Welfare of Immigrants (JCWI), said: “The Home Office is still up to its neck in the discrimination caused by the Hostile Environment. Both the Equality and Human Rights Commission and the Independent Windrush Reviewer are expecting Priti Patel and her department to investigate and stamp out racial and other discrimination caused by its policies, not to make them worse.”

The Home Office has previously received criticism over its handling of deportation decisions affecting disabled people, among them the case of Osime Brown, a 22-year-old with autism, from Dudley.

Brown was sentenced in 2018 to five years in prison for the robbery of friend’s mobile phone, which he denies, automatically qualifying him to be considered for deportation. In December 2020, more than 100 public figures wrote to Priti Patel to warn that his removal to Jamaica – which Brown left when he was four, and where he has no family or support – would amount to a “death sentence”. The Home Office has the discretion to make exceptions including on human rights grounds, but has not done so in Brown’s case.

Pragna Patel, director of campaigning group the Southall Black Sisters, said the document highlights a callous attitude to migrants made homeless by domestic violence. “Our experience shows that discretion is hardly ever used in a compassionate way or to exercise justice,” she said. “The argument they give is that this will protect the public. It begs the question: who is the public they are trying to protect here? It doesn’t include the Asian women. It doesn’t include disabled people.”

The document anticipates that “only a small number of people” will be caught within the new rule, citing figures from the 2019 Rough Sleeper Snapshot in England. Of the 4,266 rough sleepers counted, around 22 per cent (937) were EU nationals while 4 per cent (151) were from outside the EU. However, the accuracy of the Rough Sleeper Snapshot is disputed; in mid-May last year local authorities took in 2,500 rough sleepers who were ineligible for benefits due to their immigration status, according to the National Audit Office.

This article was co-published with the Observer.