1. ---------- Forwarded message ----------
Removal of EU Citizens in the UK

2. Administrative removal – problem stated
Is a developing trend for the administrative removal of EU citizens and their family members for want of an EU right to reside and/or so call ‘misuse’ of rights
UK policy and practice often inconsistent with procedural and substantive EU law rights
Many persons are being detained and/or removed as a result
Administrative removal – problem stated

3. The TRADITIONAL APPROACH
Deportation/Expulsion = being naughty
Removal/Return = not being naughty*
*But we’d quite like to get rid of you anyway

4. ADMIN REMOVAL & LEGAL F/WORK
EU Citizens and family members
Article 35 of CRD
Right of Admission
Initial Right of Residence
Extended Right of Residence
Right of Permanent Residence
Article 14 of CRD

5. The travaux preparatoire
Commission’s Explanatory Memorandum for the draft CRD
Following adoption of the CRD, the Commission has since reported upon its implementation (the “2 July 2009 Report”)

6. TOOLKIT
The Immigration (European Economic Area) Regulations 2016
Directive 2004/38
Civil Procedure Rules – Part 54, Practice Direction 54
European Economic Area: administrative removals (version 3) 1 February 2017
European Economic Area nationals: misuse of rights and verifications of EEA rights of residence (version 2) 1 February 2017

7. A “misuse of a right to reside” is defined in Reg
A “misuse of a right to reside” is defined in Reg. 26 as follows: “Misuse of a right to reside 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 determined by reference to Council Directive 2004/38/EC(16) and the EU Treaties); and (b) intends to obtain an advantage from these Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these Regulations. […] (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 misuse of a right to reside and it is proportionate to do so. […] (6) This regulation may not be invoked systematically.”

8. Evolution of HO Policy
The following published policy documents are relevant:
“Abuse of rights, fraud and verification of EEA rights of residence v1.0”, 27 January 2015 (“Policy 1.0”). 
“European Economic Area administrative removal: consideration and decision, Version 2.0)”, 4 May 2016 (“Policy 2.0”) 
“European Economic Area nationals: misuse of rights and verification of EEA rights of residence, Version 2.0”, and “European Economic Area (EEA) administrative removal, Version 3.0” (“Policy 3.0”) dated 1 February 2017.

9. Evolution of HO Policy (2)
If rough sleeping cannot itself constitute a misuse of rights, Policy 2.0 and Policy 3.0 are to that extent ultra vires the 2016 Regulations. It would also follow that Policy 1.0 was, in the like way, ultra vires the Regulations.
If, on the other hand, rough sleeping is capable of amounting to a misuse of rights, then necessary to examine whether the Policy correctly differentiates the circumstances in which this is possible.

10. Meaning of “abuse of rights” under EU Law
C-110/99 Emsland-Stärke GmbH
C-321/05 Hans Markus Kofoed v Skatteministeriet,
Opinion of AG Slynn in Case 39/86 Sylvie Lair v Universität Hannover
C-279/05 Vonk Dairy Products BV v Productschap Zuivel

11. Meaning of “misuse of rights” under UK domestic law
A “misuse of rights” under domestic law is coterminous with an “abuse of rights” as defined under EU law.
The SoS accepts that this is so

12. Discrimination
The measure – i.e. the relevant portions of Policy 3.0 – targets only people who are both (i) homeless, and (ii) EEA nationals.
Clear case of less favourable treatment on overlapping grounds – including nationality, property, economic and social status, migrant status, and homelessness.

13. SYSTEMATIC VERIFICATION
Article 14(2) of the CRD provides that: “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 fulfilled. This verification shall not be carried out systematically.” (Emphasis added).
See Case C-308/14 Commission v UK [2016] 1 WLR 5049, §§ (Cf. AIRE Centre v Secretary of State for the Home Department [2017] 4 WLR 129 at [17]-[25], presently under appeal).