R (on the application of Nouazli) v Secretary of State for the Home Department
Last month, in the case of R (on the application of Nouazli) v Secretary of State for the Home Department  UKSC 16,  All ER (D) 133 (Apr), the Supreme Court ruled that EEA nationals can be detained prior to possible deportation under Regulation 24 (1) of the EEA Regulations 2006.
The case concerned the lawfulness of a power to detain pending a decision to deport, which applied only to EEA nationals and their family members but not to third-country nationals without a right of residence under EU law, even though the latter might have committed equally or more serious offences.
The Appellant was an Algerian national who had come to the UK in 1996. He was refused Asylum but subsequently married a French national the following year. By 2003 he had acquired permanent residence in the UK.
The couple had two children but separated in 2004, and the wife returned to France.
By 2005, the Appellant had been convicted of 28 criminal offences and had served 23 months in prison. There was an attempt to deport him in 2007; however, he committed further offences and was jailed again in 2012 for theft.
Upon his release he was served with notice of the intention to deport him on the grounds that he would pose “a genuine, present and sufficiently serious threat to the interests of public policy” if he was to stay in Britain.
He was detained for five months in 2012 under regulation 24(1) and Schedule 3 of the Immigration Act 1971 pending a decision being made on whether to deport him. He was then detained again from 7th September 2012 until 2nd January 2013.
The issues raised
The key issues of the case concerned whether or not the power to detain under regulation 24(1) of the EEA Regulations 2006 unlawfully discriminate against EEA nationals and their families? At a wider level, this case raises the questions of whether EU equality law permits discrimination between those who are exercising EU law rights and those who are not.
The case also raises the questions whether EU law applies a necessity test to detention and whether mandatory time limits for Immigration detention are required as a matter of EU law. The appellant argued that the detention power applied to him was unnecessary, and therefore disproportionate and incompatible with EU law, because non-EEA nationals who posed an equal or greater risk of harmful offending were not liable to detention and because the power to detain was without limit of time and the same objectives could have been attained by a detention power limited in time.
In a lead judgment given by Lord Clarke, the appeal was dismissed on every ground.
The court decided that:
- the new detention power under Immigration (European Economic Area) Regulations (IEEEAR) 2006, regulation 24(1) did not discriminate without lawful justification against EEA nationals and their families
- the absence of a time limit did not render the detention unlawful
- the relevant parts of IEEAR 2006 accurately transposed the Citizens’ Directive
- the appellant had been lawfully detained and then lawfully subjected to bail conditions
Lord Clarke quoted from Edward and Lane on European Union Law (2013), para 8.02, which states, “Discrimination against third country nationals is not prohibited. It is presumed, and indeed expected, that they will be treated differently.”
His Lordship then went on to say:
Such “discrimination” is simply a function of the limited scope of the EU legal order. It is not legitimate to draw a comparison between those exercising EU rights and other third country nationals for the purposes of EU discrimination law. Thus, in R (Bhavyesh) v Secretary of State for the Home Department  EWHC 2789 (Admin), Blake J held at para 27 that, “… members of such a class are the beneficiaries of a special legal regime, in a different position from either aliens or generally, or British citizens who fall altogether outside the scope of EU law. They are thus incapable of being a comparator class, or a group who are analogously situated with the claimants.”
It is submitted on behalf of the SSHD that this analysis is fatal to the appellant’s discrimination case. I agree”.
When considering whether detention of the Appellant was illegal because there was no time limit given as to when the incarceration would end, the Supreme Court held that as long as the principles set out in R v Governor of Durham Prison, Ex parte Singh  1 All ER 983,  1 WLR 704,  Imm AR 198 were applied, a time limit on the period of detention would not be necessary.
Those principles are as follows:
“When a deportation order has been made in respect of a person, the Secretary of State's power under the Immigration Act 1971, Schedule 3, para 2(3), to detain that person until his removal from the United Kingdom is subject to the following limitations:
(i) the power may only be used for the purpose of detaining the individual concerned pending his removal from the United Kingdom,
(ii) the power is limited to a period which is reasonably necessary for that purpose, and
(iii) the Secretary of State must exercise all reasonable expedition to ensure that steps are taken to secure the person's removal from the United Kingdom within a reasonable time.”
Issues the Supreme Court failed to clarify
Following this judgment, there are a number of issues that still require clarification, including some points where argument appears to have been heard but the judgment remains silent. These include whether EU law requires that detention be necessary and whether the EU law general principle of equality is engaged by a power which differentiates, without objective justification, between those exercising EU law rights and those who are not.
Meanwhile, the question of the circumstances (if any) in which Article 14 of the European Convention of human rights may be engaged by differences in treatment between EU nationals and third-country nationals is still uncertain and open for further legal challenge.
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Posted on: Wednesday, 22 June, 2016