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Supreme Court says EU Citizens can be detained and deported

The Supreme Court in R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16 makes it clear that EEA nationals can be deported by virtue of the Immigration (European Economic Area) Regulations 2006, reg 19(3)(b) “if the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or health . . . ”

However, the issue in the case was not the power to deport EEA nationals, but the power to detain them prior to possible deportation, as afforded to the UK by virtue of reg 24(1) of the 2006 Regulations.

The case concerned an Algerian national (the appellant) who entered the United Kingdom in 1996 and was refused asylum. He married a French national in 1997. He was granted a residence permit, and had acquired a right of permanent residence by February 2003. He had two children with his wife but they were estranged by July 2004 and she returned to France in late 2005. By the end of January 2012, the Appellant had acquired 28 criminal convictions for 48 offences, including one 23-month sentence. The Home Secretary unsuccessfully attempted to deport him for that reason in January 2007. But he continued to offend, and was sentenced to 20 weeks’ imprisonment for an offence of theft on 25 January 2012.

On 3 April 2012, just as the appellant was due to be released from custody for that offence, the Secretary of State served him with notice of her intention to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006, on grounds that he would pose “a genuine, present and sufficiently serious threat to the interests of public policy” if he remained. He was detained from 3 April 2012 to 6 September 2012 (on bail from 6 June)pending a decision being made on whether to deport him. He was served with a fresh Notice to that effect on 7 September 2012, and was again detained from 7 September 2012 until 2 January 2013. The appellant contended that his detention pending removal was unlawful, and sought judicial review. He argued that his detention contravened article 27(1) of the Citizens Directive (2004/38/EC) and that reg 24(1) was incompatible with European law and unlawful because it discriminated against him on the basis of nationality without lawful justification contrary to Article 18 TFEU (there being no equivalent provision for pre-decision detention in relation to family members of British nationals or non-EEA nationals). The Upper Tribunal and the Court of Appeal dismissed his claim and appeal respectively. He appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal on all grounds. Lord Clarke gave the lead judgment.

In considering whether reg 24(1) of the 2006 Regulations discriminates against EEA nationals, Lord Clarke referred to Edward and Lane on European Union Law(2013), where, Professor Sir David Edward QC, observed: “Discrimination against third country nationals is not prohibited. It is presumed, and indeed expected, that they will be treated differently.”

In a short concurring judgment, Lord Carnwath states:

"The appellant has an appalling record of thefts and other crimes (described by the tribunal as mainly ‘petty opportunistic thefts’ not involving violence) extending over a decade before the events in question. They had resulted in jail terms amounting cumulatively to at least five years. It is not surprising that the Secretary of State’s patience ran out in early 2012 and that she set in motion steps for his removal from this country."

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