On 20 April 2016, the Supreme Court handed down its decision in the case of R (on the application of Nouazli) v Secretary of State for the Home Department  UKSC 16, which considered the lawfulness of the power to detain an EEA national pending removal.
The case concerned an Algerian national who arrived in the UK in 1996 and was initially refused asylum. He later married a French national and acquired a right of permanent residence in the UK in 2003. The Appellant and his wife became estranged before the birth of their third child in July 2004 and the wife moved back to France. By January 2012, the Appellant had engaged in an extensive list of criminal offences of thefts and other crimes (such as drug related offences), to which he acquired 28 criminal convictions, one of which resulted in a jail term of 23 months'.
Following an unsuccessful attempt by the Home Office to deport him in 2007, he continued to offend and was imprisoned again for a period of 20 weeks. This conviction gave rise to further deportation proceedings against the Appellant and to the administrative detention that was challenged under this appeal before the Supreme Court.
Following an unsuccessful judicial review and appeal in the Court of Appeal, the Appellant appealed to the Supreme Court.
The Appellant was challenging:
1. the decision by the SSHD to detain him under the Immigration (European Economic Area) Regulations 2006 ("EEA Regulations") for a period of approximately 2 months; and
2. the second period of bail restrictions imposed on him after the second decision to deport, for a period of approximately 7 months ("detained on bail").
The Appellant contended that his detention was incompatible with European law and unlawful because it discriminated against him on the basis of nationality without lawful justification.
In considering the legal framework, Lord Clarke (along with the majority) outlined the necessary differences in the immigration controls that apply to those exercising EU rights of free movement and those that apply to non-British citizens not exercising EU law rights. Importantly, those exercising EU law rights are not subject to the same process of immigration control by virtue of the free movement principle and similarly they have greater rights as far as restrictions on removal and deportation are concerned.
Lord Clarke then considered the EU legal requirements covering detention pending a decision whether or not to deport and the corresponding restrictions imposed on the free movement principle under EU law. It is notable that EU laws only provide limited grounds upon which member states may restrict the freedom of movement of EU citizens and their family members. These are provided for under Article 27 and 28 of the Citizens Directive 2004/58/EC of 29 April 2004, ('the Directive') which are given effect by the EEA Regulations.
The EEA Regulations provide that an EEA national (or their family member) may be removed if they no longer have the right to reside in the UK or if the SSHD has decided to remove them on grounds of public policy, public security or public health (Reg 19). The EEA Regulations further provide that a person may be detained if there are reasonable grounds for suspecting that a person is someone who may be removed from the UK on the grounds noted above, pending a decision about whether or not to remove them (Reg 24).
An EEA national exercising free movement rights may therefore only be removed on public policy, public security or public health grounds, which must be serious in the case of a person with a permanent right of residence. Further any removal decision must be based 'exclusively on the personal conduct of the individual concerned' which 'must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society'. Such decisions must specifically consider the individual's situation (i.e. age, state of health, family and economic situation, length of residence, integration in the UK and links to country of origin).
This appeal considered four primary points of challenge around the legalities of detention.
Outlined below are the four issues, which were challenged, and the courts brief findings:
1. Whether the power to detain under Regulation 24(1) discriminates without lawful justification against EEA nationals and their family members (because there is no equivalent power in relation to a third country national).
By virtue of the fact that EU nationals are in fact subject to a different legal order to non EEA nationals, there is no proper basis for comparing the different circumstances which exist in relation to deportation/removal under each applicable regime for the purpose of testing discrimination. Essentially, the majority found that Regulation 24(1) does not discriminate without lawful justification against EEA nationals and their family members. Nationals of other countries are outside the scope of European law.
2. Whether the power to detain was unnecessary and disproportionate.
As it was not argued that the power to detain was applied disproportionality in this case, this finding was answered in the negative.
3. Whether the absence of a time limit for detention infringed the Hardial Singh principle.
The Hardial Singh principles essentially specify that the period of detention must be reasonable in all the circumstances and should only be used to effect deportation by the SSHD, who should act with reasonable diligence and expedition to effect removal. The Court found that a fact sensitive approach to the length of detention must be taken. Whilst no fixed time limit is prescribed, this does not undermine the Hardial Singh principles, which are well established, and the absence of such time limit does not render such detention unlawful under EU law. Further 'there is in place a clear statutory framework which involves appropriate judicial scrutiny' of all the facts and the SSHD must comply with the Hardial Singh guidelines, which are consistent with European law.
4. Whether EEA Regulations 21 and 24 failed to accurately transpose the safeguards in Articles 27 and/or 28 of the Directive.
Essentially this is a legal argument, but Lord Clarke finds that the power to detain under the Regulations is properly transposed from the Directive and the power to detain is 'well within the margin of appreciation given to national authorities under the Directive, provided it is suitable and proportionate to its purpose and reasonably exercised'.
The Supreme Court therefore found that the Appellant's detention was not unlawful and unanimously dismissed the appeal.
Although the Appellant was unsuccessful in this case, it is imperative that all EEA nationals and their family members who are subject to deportation and removal seek the appropriate legal advice to ensure any detention imposed by the SSHD is indeed lawful.
Note: The above is an overview of a lengthy judgment and is in no way a substitute for reading the judgment itself.