Mr Nouazli, an Algerian national with a right of permanent residence in the United Kingdom as the husband of a French worker, was detained for about two months after a prison sentence while the Home Secretary considered deporting him, and was then kept on bail until a tribunal held that he could not lawfully be removed. He argued that the detention power in the Immigration (European Economic Area) Regulations 2006 was incompatible with EU law and had to be disapplied in every case. The Supreme Court unanimously dismissed the appeal: the power did not unlawfully discriminate, the absence of a fixed time limit did not make it unlawful, and the Regulations properly implemented the Citizens Directive.
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The appeal was about detention, not about whether Mr Nouazli could ultimately be deported. Lord Clarke gave the judgment of the Court, with which Lord Neuberger, Lady Hale, Lord Carnwath and Lord Toulson agreed. Lord Carnwath added a short concurring judgment.
Why he was detained
Mr Nouazli acquired a permanent right of residence as the husband of a French worker living in the United Kingdom.
The marriage later ended and Mr Nouazli was convicted of a series of offences.
Earlier decisions to deport him had been successfully appealed. When a further prison sentence came to an end in April 2012, the Secretary of State was considering removal again.
When that sentence ended he was not released. He was served with an invitation to make representations, a notice of a decision to make a deportation order under the 2006 Regulations, and a letter saying that he was detained under the Immigration Act 1971. An earlier internal notice had wrongly said that a deportation decision had already been made under that Act. His solicitors objected that the decision had been taken before he could make representations and without the safeguards in regulation 21(6). On 11 May 2012 the Secretary of State withdrew the 3 April decision, but maintained that detention remained lawful because his convictions gave reasonable grounds for believing that he might be removed.
He was granted bail on 31 May 2012, with a reporting restriction and an electronic curfew, and released on 6 June 2012. It was later conceded that, because there had been no valid decision to deport, the period from 3 April until 6 September 2012 was to be treated as detention under regulation 24(1). On 7 September 2012 a fresh deportation decision was made. His appeal was allowed in a determination promulgated on 2 January 2013: as a permanent resident, he still did not meet the expulsion threshold. The Secretary of State did not challenge that decision. Bail restrictions continued until then. Any restrictions after 2 January 2013 were adjourned in the Administrative Court and were not part of this appeal.
His claim for judicial review, issued on 27 April 2012, failed before Eder J and the Court of Appeal. He did not argue that the detention decisions were irrational, or that they were disproportionate on their own facts. The challenge was put at a high level of abstraction: the legislation was said to be invalid and had to be disapplied in every case.
The power and the European rules
People exercising EU free-movement rights do not need leave to enter or remain, and their removal is tightly limited. Under the Citizens Directive 2004/58/EC, and regulations 19 and 21 of the 2006 Regulations, removal on public-policy or public-security grounds must be proportionate and based only on the person’s own conduct. That conduct must represent a genuine, present and sufficiently serious threat to a fundamental interest of society. Previous convictions are not enough by themselves. For someone with permanent residence, there must be serious grounds of public policy or public security. Age, health, family and economic situation, length of residence, integration and links with the country of origin must be considered.
Regulation 24(1) allowed detention where there were reasonable grounds for suspecting that a person might be removed on those grounds, pending a decision whether to remove. Regulation 24(3) applied once a removal decision had been taken, by treating the person as liable to the deportation machinery in the Immigration Act 1971. The Court treated the detention power as ancillary to removal, not as a free-standing power to lock someone up.
Discrimination
Mr Nouazli said that regulation 24(1) discriminated against EEA nationals and their family members because a comparable pre-decision detention power was not available against other foreign nationals. The Court rejected that comparison. Article 18 of the Treaty on the Functioning of the European Union prohibits discrimination on grounds of nationality within the scope of EU law. Following Vatsouras, Lord Clarke held that it is concerned with how Union citizens are treated in member states other than their own, not with differences between people inside the EU legal order and nationals of non-member countries who fall outside it. EEA nationals and their family members are in a special position: they have extensive rights of residence and a higher hurdle to removal than the domestic test of whether deportation is conducive to the public good. They were not a valid comparator class for this complaint.
Two further formulations did not change the result. Article 21 of the EU Charter of Fundamental Rights reaffirms rights but does not create new ones. A comparison between the Algerian husband of a French woman exercising Treaty rights and the Algerian husband of a British woman failed on the facts. Mr Nouazli’s wife was not a party. She had returned to France in late 2005, and any practical link had ended years before the detention. The Court did not accept that her free-movement rights had been affected by a few months’ detention and bail, or that regulation 24(1) was therefore invalid in every case. It was unnecessary to consider objective justification.
Time limits and proportionality
The Court accepted that regulation 24(1) must be applied proportionately. That did not make the regulation itself disproportionate. It was not argued that it had been applied disproportionately to Mr Nouazli.
Nor did the lack of a fixed maximum period make the power unlawful. English law already limits immigration detention through the Hardial Singh principles. The Secretary of State must intend to deport and may detain only for that purpose; detention may last only for a period that is reasonable in all the circumstances; if removal cannot be effected within a reasonable period, detention should not continue; and the Secretary of State must act with reasonable diligence and expedition. Those principles are fact-sensitive. The Court endorsed the view that there is no tariff or yardstick, and that each deprivation of liberty pending deportation requires scrutiny of all the facts against those principles.
Lord Clarke held that Strasbourg case law did not impose a general requirement of a fixed time limit. Length must not exceed what is reasonably required, and the absence of a limit can be relevant where a system lacks safeguards against arbitrariness. Here there was a statutory framework, judicial supervision and the Hardial Singh limits. Those limits were not merely an after-the-event damages test: the Secretary of State must comply with them, and the courts can supervise that compliance. The same reasoning meant that regulation 24(1) did not unlawfully cut down rights by comparison with the position before the Directive.
Transposition
It was argued that a decision to detain under regulation 24(1) was not an “EEA decision” concerning removal, so the safeguards in articles 27 and 28 of the Directive, reflected in regulation 21, did not apply. Lord Clarke’s short answer was that the detention power is not free-standing. It is ancillary to removal under regulation 19(3)(b), which expressly depends on regulation 21. Creating a linked power to detain, where otherwise the person might abscond, was within the margin allowed to national authorities, provided the power was suitable, proportionate and reasonably exercised. It was not said that the decisions in this case were arbitrary or disproportionate. Lord Carnwath agreed that the Secretary of State could not properly use regulation 24 with a view to removal under regulation 19(3)(b) without taking account of regulation 21.
The request for a reference
A later EU judgment about detention of applicants for international protection concerned a different legal scheme. It did not disturb the Court’s conclusion or require a reference.
Verdict: The Court unanimously dismissed the appeal and declined to refer the case to the Court of Justice. The grounds of challenge did not invalidate the pre-decision detention or the bail restrictions up to 2 January 2013. Later restrictions were outside this appeal.
Source: R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16
