R (on the application of Nouazli) v Secretary of State for the Home Department [2016] UKSC 16

An Algerian national, married to a French EEA national and with permanent residence rights in the UK, challenged his administrative detention pending a deportation decision under the EEA Regulations 2006. The Supreme Court unanimously dismissed the appeal, upholding the regulations' compatibility with EU law.

Facts

The appellant, Mr Nouazli, was an Algerian national who arrived in the UK in 1996 and married a French national in 1997, thereby acquiring rights as a family member of an EEA national. By February 2003 he had acquired a right of permanent residence under EU law. By January 2012 he had amassed 28 convictions for 48 offences, predominantly petty thefts and drug possession offences, characterised by the First-tier Tribunal as the record of a ‘petty criminal committing mainly theft offences to fund his drug use’.

Following a further theft conviction in January 2012, the Secretary of State for the Home Department initiated deportation proceedings. The appellant was administratively detained from 3 April 2012 until 6 June 2012 under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006, and thereafter subjected to bail conditions until 2 January 2013, when the First-tier Tribunal allowed his appeal against deportation on the basis that the ‘serious grounds of public policy or public security’ threshold for expulsion of permanent residents was not met.

The appellant sought judicial review challenging the lawfulness of his detention and bail restrictions, contending that regulations 21 and 24 of the EEA Regulations 2006 were incompatible with EU law.

Issues

The agreed issues were: (1) whether the detention power under regulation 24(1) discriminates without lawful justification against EEA nationals and their family members; (2) whether the power to detain before making a deportation decision is disproportionate; (3) whether the absence of a time limit renders such detention unlawful under EU law; (4) whether regulation 24(1) unlawfully restricts the rights of EEA nationals compared to those enjoyed before the Citizens Directive; (5) whether regulations 21 and 24 fail accurately to transpose the safeguards of articles 27 and/or 28 of the Citizens Directive; and (6) whether the appellant’s detention and bail restrictions were consequently unlawful.

Arguments

Appellant’s submissions

Mr Saini QC argued that regulation 24(1) was discriminatory because no equivalent pre-deportation detention power existed for third-country nationals not exercising EU rights, contrary to article 18 TFEU. He further argued that there was discrimination between British nationals and EU nationals where both had third-country spouses, relying on R v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department (Case C-370/90). He contended that the absence of a mandatory time limit rendered detention incompatible with EU principles of legal certainty and proportionality, and that regulation 24 failed to transpose the safeguards in articles 27 and 28 of the Directive because a regulation 24 decision was not an ‘EEA decision’.

Respondent’s submissions

The Secretary of State argued that article 18 TFEU is concerned only with treatment of EU citizens in member states other than their own, and that EEA nationals and third-country nationals are subject to different legal regimes that cannot be directly compared. The Hardial Singh principles provided adequate, fact-sensitive limitations on detention duration. Regulation 24(1) is ancillary to regulation 19(3)(b), which itself incorporates the safeguards of regulation 21 transposing articles 27 and 28.

Judgment

Lord Clarke (with whom Lord Neuberger, Lady Hale, Lord Carnwath and Lord Toulson agreed) dismissed the appeal.

Discrimination

Article 18 TFEU does not apply to differences in treatment between EU nationals and third-country nationals, as confirmed in Vatsouras and Koupstantze v Arbeitsgemeinschaft (Joined Cases C-22/08 and C-23/08). EEA nationals belong to a ‘special legal order’ and cannot be a comparator class with third-country nationals. The alternative argument based on Singh was rejected because the appellant and his wife had been separated for ten years, any effect on her rights was hypothetical, and the case concerned merely temporary detention rather than removal.

Proportionality and time limits

Regulation 24(1) must be applied proportionately, and so applied is not itself disproportionate. The Hardial Singh principles, as restated by Dyson LJ in R (I) v Secretary of State and endorsed by the House of Lords, require fact-sensitive assessment of reasonableness. Lord Thomas CJ in Fardous had deprecated the use of tariffs. The Strasbourg jurisprudence (Chahal, Saadi, Tabassum) does not require fixed statutory time limits; absence of time limits is merely a relevant factor in assessing arbitrariness. Lord Clarke endorsed Lord Thomas CJ’s statement that ‘Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the Secretary of State in accordance with the Hardial Singh principles. Those principles are the sole guidelines.’

Transposition

Regulation 24 is not a free-standing power but is ancillary to regulation 19(3)(b), which is expressly subject to regulation 21 transposing articles 27 and 28. The creation of an ancillary detention power falls within the margin of appreciation, provided it is suitable, proportionate and reasonably exercised.

Postscript on JN v Staatssecretaris

The Court considered late submissions on JN v Staatssecretaris van Veiligheid en Justitie (Case C-601/15 PPU) but found that case concerned a different legislative provision (Directive 2013/33/EU, not binding on the UK) addressing detention of applicants for international protection, and did not lay down minimum criteria applicable to the Citizens Directive context.

Lord Carnwath added a concurring judgment emphasising the narrow nature of the issue and confirming that the Secretary of State has a wide margin of appreciation, the Hardial Singh principles are well established, and regulation 24 powers ancillary to regulation 19(3)(b) necessarily import the requirements of regulation 21.

Implications

The decision confirms the lawfulness of administrative detention of EEA nationals and their family members under regulation 24(1) of the EEA Regulations 2006 pending a decision on removal on public policy, security or health grounds. It establishes that the absence of a fixed statutory time limit does not in itself render such detention unlawful under EU law, provided the Hardial Singh principles are properly applied on a fact-sensitive basis.

The judgment reinforces that EU citizens and third-country nationals are subject to distinct legal regimes that cannot be compared for the purposes of EU discrimination law, as both EU and ECHR jurisprudence accept that EEA nationals form part of a ‘special legal order’ justifying differential treatment.

The case is significant for immigration practitioners as it confirms that regulation 24 detention powers are properly ancillary to the substantive removal powers in regulation 19(3)(b), and need not themselves constitute ‘EEA decisions’ to satisfy the Citizens Directive. The decision also confirms that disproportionate exercise of the power in a particular case could lead to disapplication on the facts, but is not a basis for striking down the regulation in its entirety. The Court declined to make a reference to the CJEU, considering the relevant EU law principles to be acte clair.

Verdict: Appeal dismissed. The Supreme Court unanimously held that regulations 21 and 24 of the Immigration (European Economic Area) Regulations 2006 are compatible with EU law, and that the appellant’s administrative detention and subsequent bail restrictions were lawful.

Source: R (on the application of Nouazli) v Secretary of State for the Home Department [2016] UKSC 16