Supreme Court

Regina (Nouazli) v Secretary of State for the Home Department

[2016] UKSC 16; [2016] WLR (D) 220

2016 April 20

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Carnwath, Lord Toulson JJSC

European Union — Freedom of movement — Persons — Algerian national with right of residence in United Kingdom as spouse of European Economic Area national detained pending decision whether to remove him — Whether administrative detention pending decision on removal incompatible with right to freedom of movement or constituting unlawful discrimination on grounds of nationality — Immigration (European Economic Area) Regulations 2006 (SI 2006/1003)(as amended by Immigration (European Economic Area) (Amendment) Regulations 2009 (SI 2009/1117), reg 2, Sch 1, para 10; Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547), reg 3, Sch 1, para 17), regs 21, 24(1) — FEU Treaty, art 18FEU — Parliament and Council Directive 2004/38/EC, art 27

Facts

The claimant, an Algerian national, gained entry to the United Kingdom using a false French identity card and applied for asylum, which was refused. He married a French national who was a worker in the United Kingdom and was granted a residence permit as the family member of an European Economic Area national. After five years of continuous residence he acquired a right of permanent residence in the United Kingdom. The marriage subsequently broke down and the wife returned to France. The claimant was convicted of 47 criminal offences including possession of controlled drugs and theft, and served numerous prison sentences between 2001 and 2011. In January 2012 he was again convicted of theft and sentenced to a further term of imprisonment. While serving that sentence the Home Secretary served notice of her intention to make a deportation order against him under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 as a person whose removal was justified on grounds of public policy, public security or public health. On 3 April 2012, the claimant completed his criminal custodial term but was administratively detained, pursuant to regulation 24(1) and Schedule 3 to the Immigration Act 1971, until 6 June 2012 when he was released on bail subject to a reporting restriction and electronic curfew which remained in place until 6 September 2012. Under challenge by the claimant, the deportation decision was withdrawn pending consideration of any representations made his behalf, but a fresh notice of deportation was served and he was again made subject to bail conditions. Ultimately the First-tier Tribunal (Immigration and Asylum Chamber) determined that the threshold for the expulsion of a permanent resident had not been met in the claimant’s case and the Home Secretary did not seek to challenge that decision. The claimant, however, sought judicial review of the lawfulness of his administrative detention following completion of his custodial sentence. The judge dismissed the claim and the Court of Appeal upheld his decision. On appeal to the Supreme Court the claimant contended that the detention power under regulation 24(1) of the 2006 Regulations discriminated without lawful justification against European Economic Area nationals and their family members contrary to article 18FEU of the FEU Treaty and under article 21.1 of the Charter of Fundamental Rights of the European Union; that it was disproportionate, particularly in so far as there was no time limit to the period of detention; and that regulations 21 and 24 of the 2006 Regulations were contrary to European Union law because they failed accurately to transpose the safeguards of articles 27 and/or 28 of Parliament and Council Directive 2004/38/EC.

On the appeal—

Held

Held, appeal dismissed. (1) Article 18FEU was concerned only with the way in which citizens of the European Union were treated in member states other than those of which they were nationals and article 21 of the Charter of Fundamental Rights of the European Union added nothing to extend that right. Since the claimant’s former wife had not brought a discrimination claim and there was nothing to suggest that she had suffered discrimination because of the claimant’s administrative detention, there was no conceivable basis on which an European Economic Area national had been affected by the claimant’s administrative detention and, accordingly, regulation 24 of the 2006 Regulations did not discriminate without lawful justification against European Economic Area nationals and their family members (paras 41, 46, 49, 53, 60–61, 79, 85, 97, 104, 107).

Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900 (Joined Cases C-22/08 and C-23/08) [2009] All ER (EC) 747, ECJ applied.

(2) Regulation 24(1) of the 2006 Regulations was not, as drafted, disproportionate and the lack of a specified time limit for detention did not in itself render detention unlawful under European Union law. There was in place a clear statutory framework which involved appropriate judicial scrutiny and each case would depend on its facts. On the facts of the claimant’s case, regulation 24(1) of the 2006 Regulations had not been applied disproportionally (paras 62, 69, 74, 78, 85, 97, 105, 107).

Dicta of Lord Thomas of Cwmgiedd CJ in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, para 41, CA, approved.

R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 considered.

(3) The power to detain under regulation 24 was not free-standing, but purely ancillary to the powers of removal in the circumstances permitted by regulation 21, which properly transposed articles 27 and 28 of Parliament and Council Directive 2004/38/EC. The questions involved were acte clair and the claimant’s detention had, accordingly been lawful (paras 81, 83–86, 93–97, 106–107).

JN v Staatssecretaris van Veiligheid en Justitie (Case C-601/15 PPU) EU:C:2016:84 , ECJ distinguished.

Appellate History

Decision of the Court of Appeal [2014] 1 WLR 3313 affirmed.

Appearances

Pushpinder Saini QC, Professor Takis Tridimas and Laura Dubinsky (instructed by Lawrence Lupin Solicitors, Wembley) for the applicant.

Tim Ward QC and Jonathan Auburn (instructed by Treasury Solicitor) for the Secretary of State.

Reported by: Ms B L Scully, Barrister

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