Family member of EEA national – Claimant marrying French national and acquiring right of residence as family member of EEA national – Claimant being convicted of numerous criminal offences – Claimant serving sentence of imprisonment

R (on the application of Nouazli) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 10 December 2013

The claimant arrived in the UK from Algeria. He married a French citizen and was granted a right of residence as a family member of a European Economic Area (EEA) national. Over the following years, the claimant was convicted of criminal offences on many occasions and failed, on numerous occasions, to comply with the conditions imposed on him by the police, the courts and the immigration authorities. An attempt by the defendant secretary of state to deport the claimant failed. The claimant continued to offend and was eventually sentenced to 20 weeks’ imprisonment.

On his release date, the claimant was served with notice of the secretary of state’s decision to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (the Regulations), on the ground that if he were to remain he would pose a genuine, present and sufficiently serious threat to the interests of public policy. He was handed a letter from the UK border agency informing him that he was to be detained under the powers contained in schedule 3 to the Immigration Act 1971 pending his removal. The claimant was detained in custody between 3 April 2012 and 6 June 2012, at which time he was released on bail.

On 7 September, the claimant was served with a fresh notice that a decision had been taken to deport him. On appeal, the First-tier Tribunal (Immigration and Asylum Chamber) allowed the claimant’s appeal. The claimant issued judicial review proceedings in respect of the secretary of state’s decision to detain him between while she had been considering making an order for his deportation.

The claimant’s submissions were: (i) whether as a family member of a national of a member state he was entitled to the protection of Parliament and Council Directive (EC) 2004/38 (on the right of citizens of the union and their family members to move and reside freely within the territory of the member states) (the Directive) and if so, whether his detention pending removal following a conviction had been unlawful because it contravened article 27.1; (ii) whether regulation 24(1) of the Regulations and section 36 of the UK Borders Act 2007 (the 2007 act) were compatible with European law; and (iii) whether his detention under regulation 24(1) had been unlawful because its exercise had involved discrimination against him on grounds of nationality. The secretary of state contended that the detention had been justified under regulations 19 and 24 of the Regulations. The application was dismissed; the judge having dismissed all of the claimant’s submissions. The claimant appealed.

He submitted, inter alia, that article 27.1 of the Directive permitted administrative detention pending deportation and, therefore, regulation 24(1) of the Regulations and section 36(1) of the 2007 act were incompatible with it.

The appeal would be dismissed.

Administrative detention under regulation 24 of the Regulations was not incompatible with the Directive, provided that the Directive’s safeguards, which were themselves reflected in regulation 21, were met. The power in section 36(1) of the 2007 act to detain those who had served a sentence of imprisonment could be exercised only for the purposes of implementing the provisions for automatic deportation contained in section 32(5), but that section was itself subject to the exceptions set out in section 33 and section 33(4) excluded from the operation of section 32(5) the removal of a foreign criminal in breach of his rights under the EU treaties and other legislation. It followed that EEA nationals could not be detained pending deportation or removed otherwise than in accordance with the Regulations (see [17], [32], [33] of the judgment).

Article 27 of the Directive was engaged by any measures which interfered, or which might have the effect of interfering, with the right of free movement. However, it was framed in broad terms and not confined to measures which were directly linked to exclusion. The limits on the right to interfere with freedom of movement were those set out in article 27 itself. The circumstances which might present a danger to public security and public health, in particular, although perhaps of limited duration, might be such as to justify a temporary restriction on freedom of movement short of expulsion.

The safeguard lay in the limited grounds on which freedom of movement might be restricted and on the need for proportionality, at least when the grounds relied on were public policy or public security. Read in context it was clear that article 27 of the Directive was primarily concerned with the right of member states to exclude from their territory citizens of the European Union who would otherwise have the right to enter and reside there.

However, administrative detention in connection with deportation necessarily affected the right of free movement, not only in the ordinary sense of restricting the liberty of the detainee, but in the broader sense of preventing him from exercising his right to travel to another member state. It was also liable to deter EEA nationals from entering and residing in the state in question (see [11], [32], [33] of the judgment).

The judge in the instant case had been correct to find that, in principle, detention pending a decision on removal could be justifiable on the grounds of public policy or public safety. Article 27(1) of the Directive was cast in general terms and was capable of applying to any measures that restricted freedom of movement which could be justified by reference to the provisions of the Directive. Any concerns regarding the failure of article 27 to limit the permissible period of detention were met by the requirement of proportionality (see [16], [32], [33] of the judgment).

R v Pieck: 157/79 [1981] 3 All ER 46 considered; Oulane v Minister voor Vreemdelingenzaken en Integratie: C-215/03 [2005] All ER (D) 255 (Feb) considered.

Decision of Eder J [2013] EWHC 567 (Admin) affirmed.

Ramby de Mello and Danny Bazini (instructed by Lawrence Lupin Solicitors Ltd) for the claimant; Jonathan Auburn (instructed by the Treasury Solicitor) for the secretary of state.