Court of Appeal upholds the right to roam of Romany and Travellers

27 January 2020 by Alice Irving

The Court of Appeal, in The Mayor and Burgesses of the London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12, has delivered a unanimous judgment reaffirming the rights of the Romany (‘Gypsy’) and Traveller community to live in accordance with their traditional, nomadic way of life.

The case is significant for two reasons. First, in recent years there has been a spate of local authorities applying for injunctions which prevent Romany and Travellers setting up unauthorised encampments in their boroughs. There are now 38 of these injunctions nationwide.

Despite the clear effect on Romany and Travellers of these injunctions, this case was the first time the Romany and Traveller community was represented at a hearing where an injunction was sought.  Further, it is the first case where an injunction of this sort has been considered by the Court of Appeal.

Lord Justice Coulson, delivering the leading judgment, gives clear guidance for local authorities, significantly limiting the scope for use of injunctions against the Romany and Traveller community in the future.

Second, in its judgment, the Court of Appeal reaffirms the centrality of a nomadic lifestyle to Romany and Traveller tradition and culture.

Drawing on European case law, the court was clear that measures which affect the ability of the community to stop their caravans have profound human rights implications. Not only do they impact upon the rights of Romany and Travellers to respect for their home, they also affect their ability to maintain their identity and to lead their private and family life in accordance with tradition. The European Court of Human Rights has found an emerging international consensus, that recognises the special needs of minority communities, and the obligation to protect their security, identity and lifestyle.

The timing of the Court of Appeal’s ruling couldn’t be more striking. There is a long-standing and serious shortage of sites for Romany and Travellers, forcing many to establish unauthorised encampments. In response to concerns about the impact of these encampments on local communities, the Home Office is currently consulting on the possibility of strengthening police powers in relation to unauthorised encampments. As the consultation paper puts it:

we would like to test the appetite to go further and broaden existing categories of criminal trespass to cover trespassers on land who are there with the purpose of residing in their vehicle for any period, and to give the police the relevant powers to arrest offenders in situ and to seize any vehicles or other property on existing unauthorised encampments (or those in the process of being set up) immediately.

Romany and Travellers: A History of Discrimination

The Court of Appeal begins by sketching a brief history of the Romany and Traveller community, recognising that the Romany have been in Britain since at least the 1500s, and Irish travellers since at least the 1800s. The Court also recognised that the these communities experience some of the worst outcomes of any minority across a broad range of social indicators.

To expand on this, the Romany migrated from continental Europe in the 1500s, during the Roma migration from India. Other Traveller groups throughout Britain, such as Scottish, Welsh, English and Irish Travellers, trace their nomadic heritage back for many generations. There were already indigenous nomadic people in Britain when the Romany first arrived, and the different cultures have to some extent merged.

Despite this long history, it wasn’t until 2011 that the Census included a “Gypsy and Irish Traveller” category, although Census figures are considered unreliable. Academic estimates place the combined Romany and Traveller population at anywhere between 120,000 to 300,000. Perhaps around 25% of that population live in caravans or mobile homes, in accordance with their traditional way of life.

The Romany and Traveller communities have experienced a long history of persecution, from the Middle Ages onwards. Under the Nazi regime it is estimated that between 200,000 and half a million (or possibly more) Roma and Sinti people were murdered, a less well-known part of the Holocaust. Today is International Holocaust Remembrance day; as the Holocaust Memorial Day Trust notes, the Roma and Sinti who lost their lives should not be forgotten in our reflections.

Discrimination and prejudice are still common in Europe today. While ‘no blacks’ or ‘no Irish’ signs have disappeared, ‘no Travellers’ signs are common across Europe. In 2018, the Equality and Human Rights Commission published a report on prejudice and discrimination in Britain. They found that 44% of people openly expressed negative feelings toward ‘Gypsies’, Roma and Travellers. This was double the number of those who were openly negative toward Muslims, and significantly more than in relation to any other protected characteristic or minority community. It is for this reason that ‘Anti-Gypsyism’ or ‘Romaphobia’ has been described as the last ‘acceptable’ form of racism.

The Romany and Traveller community also experience the worst outcomes of any ethnic group in relation to education, health, and employment. By way of striking example, the life-expectancy of the community is 10-12 years less than the general population. A critical factor underpinning the poor outcomes experienced by the community is the lack of lawful sites on which to establish encampments. Without lawful sites, the community continues to face evictions, which disrupt schooling, access to healthcare and employment. All Romany and Traveller support and campaigning groups recognise that outcomes across the board would improve if the longstanding problems with accommodation were addressed.

The Court of Appeal’s Guidance

Lord Justice Coulson began by stating that:

there is an inescapable tension between the article 8 rights of the Gypsy and Traveller Community … and the common law of trespass. The obvious solution is the provision of more designated transit sites for the Gypsy and Traveller community … The reality is that, without such sites, unauthorised encampments will continue and attempts to prevent them may very well put the local authorities concerned in breach of the Convention.

He then provided the following general guidance:

• Existing government guidance suggests that unauthorised encampments should not be closed down, save as a last resort and where there are specific reasons for doing so. Credible evidence of criminal conduct in the past, and/or likely risks to health and safety are important if a local authority wishes to obtain a wide injunction. Injunctions designed to prevent and entry and encampment only, without evidence of such matters, should be more difficult to obtain.
• Local authorities should regularly engage with the Romany and Traveller community. The process of dialogue and communication should avoid the need for injunctions closing down encampments. Where it is, nevertheless, considered that an injunction is required, welfare assessments should be carried out, particularly in relation to children. Further, an up to date Equality Impact Assessment should be completed.
• The vulnerability and protected status of the Romany and Traveller community, as well as the integral role that the nomadic lifestyle plays as part of their ethnic identities, will be given weight in any assessment as to the proportionality of an injunction or eviction measure. Local authorities must demonstrate understanding and respect for the community’s culture, traditions and practice. This will usually require some positive action on the part of the local authority to consider the circumstances in which the article 8 rights of the community are capable of being realised.
• Local authorities may be required to demonstrate they have complied with their general obligations to provide sufficient accommodation and transit sites for the Romany and Traveller community. Where injunctions are sought, evidence should be provided of other suitable and secure alternative housing or transit sites that are reasonably available. Where there is no alternative site, nor a proposal for such a site, that may weigh significantly against the granting of the order.
• Borough-wide injunctions are very unlikely to be proportionate. So too are lengthy injunctions, such as the five year injunction sought in Bromley.
• It is not sufficient to say the Romany and Traveller community can “go elsewhere” or occupy private land. The court, in considering an application for an injunction, will have careful regard to the cumulative effect of other injunctions.

Lord Justice Coulson’s conclusion is worth repeating in full:

Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.

You can partner with Liberty to respond to the Home Office consultation on strengthening police powers in relation to unauthorised encampments here.

The Wiener Holocaust Library is currently hosting an exhibition entitled “Forgotten Victims: The Nazi Genocide of the Roma and Sinti”. Further details can be found here.

Alice Irving is a pupil barrister at 1 Crown Office Row.