Nouazli) R (On the Application Of) v Secretary of State for the Home Department [2013] EWCA Civ 1608

[2013] EWCA Civ 1608Case No C4/2013/1865
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2013] EWHC 567 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr. Justice Eder
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 10 th December 2013
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE BRIGGSLORD JUSTICE CHRISTOPHER CLARKE
Between
THE QUEENClaimant/SECRETARY of STATE for the HOME DEPARTMENTDefendant/Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. Ramby De Mello and Mr. Danny Bazini (instructed by Lawrence Lupin Solicitors) for appellantMr. Jonathan Auburn (instructed by the Treasury Solicitor) for respondent
JudgmentLord Justice Moore-Bick :
[1]This is an appeal by Mr. Rachid Nouazli against the order of Eder J. dismissing his claim for judicial review of the Secretary of State’s decision to detain him while she considered making an order for his deportation to Algeria.[2]The appellant arrived in the United Kingdom in March 1996. In June 1997 he married a French citizen and in 1998 he was granted a right of residence as a family member of an EEA national. By the end of 2006 the appellant had been convicted on 28 occasions of 48 criminal offences. In addition he had failed on numerous occasions to comply with conditions imposed on him by the police, the courts and the immigration authorities. As a result, in January 2007 the respondent decided to remove him, but he appealed against that decision and in November 2008 his appeal was allowed by the Asylum and Immigration Tribunal. However, the appellant continued to offend on numerous occasions and eventually on 25th January 2012 he was sentenced for an offence of theft to 20 weeks’ imprisonment. His release date was 3rd April 2012.[3]On 3rd April 2012, just before the appellant was due to be released, he was served with notice of the respondent’s decision to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) on the grounds that he would pose “a genuine, present and sufficiently serious threat to the interests of public policy” if he were allowed to remain in the United Kingdom. On the same day 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 appellant was detained in custody between 3rd April 2012 and 6th June 2012 when he was released on bail, subject to a reporting restriction and an electronic curfew.[4]On 7th September 2012 the appellant was served with a fresh notice that a decision had been taken to deport him, citing the same grounds as those previously relied on. Once again, he appealed and once again by a decision published on 2nd January 2013 the First-tier Tribunal found in his favour. It was accepted before the judge that from 7th September 2012 until at least 2nd January 2013 the appellant was to be regarded as having been detained. The Regulations[5]The respondent sought to justify the appellant’s detention under paragraphs 19 and 24 of the Regulations, which lie at the heart of the present appeal. They provide, so far as material, as follows:
“19.— Exclusion and removal from the United Kingdom (3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if— (a) that person does not have or ceases to have a right to reside under these Regulations; or (b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21. . . . 24.— Persons subject to removal (1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3), that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation, . . . . . . (3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.”
Directive 2004/38/EC (a) that person does not have or ceases to have a right to reside under these Regulations; or (b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.

Directive 2004/38/EC

[6]The Regulations were designed to implement European Directive 2004/38/EC, which concerns the right of free movement and residence enjoyed by nationals of the Member States of the European Union and members of their families. The broad objective of the Directive appears most clearly from the following passages:
“Whereas (1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the member States . . . (2) The free movement of persons constitutes one of the fundamental freedoms of the internal market . . . (5) The right of all Union citizens to move and reside freely within the territory of the Member States should, . . . be also granted to their family members, irrespective of their nationality. . . . (20) In accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family members residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty . . . Article 1 Subject This Directive lays down: (a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members; (b) . . . (c) the limits placed on the rights set out in (a) . . . on the grounds of public policy, public security or public health.”
Article 1 Subject

This Directive lays down:

[7]Since much of the argument in this case revolved around articles 24 and 27, it may be helpful to set out the material parts of them as well. They provide:
“Article 24 Equal treatment 1. . . . all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. CHAPTER VI Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health Article 27 General principles 1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence or Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.”
The proceedings below Equal treatment CHAPTER VI Article 27 General principles

The proceedings below

[8]Before the judge the appellant identified, and was given leave to pursue, five separate questions, but in substance they came down to these:(i) whether as a family member of a national of a Member State he was entitled to the protection of the Directive and if so, whether his detention pending removal following a conviction was unlawful because it contravened article 27.1;(ii) whether regulation 24(1) and section 36 of the UK Borders Act 2007 (which permits the detention of a person who has been convicted of an offence pending a decision on his deportation) are compatible with European law; and(iii) whether his detention under regulation 24(1) was unlawful because its exercise involved discrimination against him on grounds of nationality. As the judge emphasised, however, the appellant did not seek to argue that the decision to detain him was Wednesbury unreasonable, nor did he rely on any other aspects of his detention to contend that it was unlawful on either occasion.[9]The judge rejected each of the appellant’s grounds and dismissed his claim for judicial review. He held that the words “may restrict the freedom of movement” in article 27.1 were wide enough to encompass detention of any kind (subject, of course, to the other requirements of that article), including detention pending a decision on deportation. He also rejected the argument that the appellant had been subjected to unlawful discrimination because he did not consider that a comparison could properly be drawn between the position of EEA nationals and that of nationals of countries outside the EEA, which formed the foundation of the appellant’s argument. (It was not disputed that since the appellant is a family member of an EEA national he is entitled to be treated as if he were himself an EEA national.) Are the Regulations compatible with article 27?[10]The first two grounds of appeal are that article 27.1 does not permit administrative detention pending deportation and that therefore regulation 24(1) and section 36(1) of the UK Borders Act 2007 are incompatible with it. The two points are closely related and it is convenient to consider them together.[11]The Directive as a whole is concerned with the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. As the second recital makes clear, free movement of persons constitutes one of the fundamental freedoms of the internal market – see article 21 of the Treaty on the Functioning of the European Union (“the Treaty”) – and it is with freedom of movement in that sense that the Directive is concerned. Chapter VI of the Directive is concerned with restrictions on the right of entry and the right of residence imposed on grounds of public policy, public security and public health, as the heading makes clear. Read in that context it is, I think, clear that article 27 is primarily concerned with the right of Member States to exclude from their territory citizens of the Union who would otherwise have the right to enter and reside there, a conclusion that is reinforced by articles 28 to 31. However, administrative detention in connection with deportation necessarily affects 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 is also liable to deter EEA nationals from entering and residing in the state in question. It seems to me, therefore, that article 27 is engaged by any measures which interfere, or which may have the effect of interfering, with the right of free movement. However, it is framed in broad terms and not confined to measures which are directly linked to exclusion. The limits on the right to interfere with freedom of movement are those set out in article 27 itself. The circumstances which may present a danger to public security and public health, in particular, although perhaps of limited duration, may be such as to justify a temporary restriction on freedom of movement short of expulsion. It would be surprising, in my view, if the Directive were not intended to accommodate situations of that kind. The safeguard lies in the limited grounds on which freedom of movement may be restricted and on the need for proportionality, at least when the grounds relied on are public policy or public security.[12]Mr. De Mello submitted, however, that article 27.1 is not broad enough to extend to detention pending a decision by the Secretary of State whether removal is justified on the grounds of public policy in the exercise of her powers under regulation 19(3)(b). He submitted that if it had been intended to allow Member States to detain EEA nationals pending a decision to remove them, the Directive would have made that clear. In particular, he argued that article 27 of the Directive does not permit the detention of a person who has been released from a term of imprisonment while a decision whether to remove him is taken and in that connection he drew our attention to a number of cases decided by the Court of Justice of the European Union, including R v Pieck Case C-157/99, [1981] Q.B. 571 and Oulane v Minister voor Vreemdelingenzaken en Integratie Case C-215/03, [2005] Q.B. 1055.[13]In R v Pieck the defendant, a national of the Netherlands, was given 6 months’ leave of entry to this country. He failed to obtain a residence permit and stayed on after his leave had expired without obtaining one. As a result, he was charged with an offence of overstaying his leave to enter and was warned that if he were convicted the court would have the power to recommend his deportation. The magistrates referred three questions to the European Court of Justice, the third of which was whether an offence of that kind could properly be punished by imprisonment and a recommendation for deportation. The court held that deportation was incompatible with the right granted by the Treaty to reside and work in any of the Member States and that, although national authorities are entitled to impose penalties in respect of a failure to comply with provisions relating to residence permits, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons, as would be the case with a sentence of imprisonment. Similar views were expressed in Messner Case C-265/88, [1989] E.C.R. 4225 and Wijsenbeek Case C-378/97, [1999] E.C.R. 1-6207.[14]In Oulane a Frenchman was found hiding in a railway tunnel in the Netherlands. He could not establish his identity by production of a passport or identity card, but if he had been a citizen of the Netherlands he could have established his identity by any means available to him. He was arrested and detained with a view to deportation and subsequently brought proceedings against the Minister for unlawful detention. The European Court of Justice held that detention with a view to deportation made on the basis of a failure to present a valid identity card or passport when there was no threat to public policy constituted an unjustified restriction on the freedom to provide and receive services anywhere within the territory of the Member States. It was therefore incompatible with article 49 of the EU Treaty (now article 56 of the Treaty). The most important part of the judgment for present purposes is to be found in paragraphs 41-44, in which the court held that a detention order with a view to deportation could be made only in accordance with an express derogating provision, such as article 8 of Directive 73/148 (a forerunner of article 27), which allowed Member States to place restrictions on the right of residence.[15]These two cases support Mr. De Mello’s argument that provisions of national law may be incompatible with the right of free movement if their effect is to prevent or create an obstacle to the free movement of persons and that detention when there is no threat to public policy, public safety or public health constitutes an unjustified restriction on the right of free movement. On the other hand, Oulane supports the proposition that detention in connection with deportation can be justified if it can be brought within the scope of article 27. One is therefore thrown back on the language of the Directive.[16]Although at several points in his argument Mr. De Mello submitted that article 27 did not permit the detention of an EU national who had served a term of imprisonment pending a decision on his removal, I do not think that the question can be answered in such broad terms. The judge took the view that in principle detention pending a decision on removal could be justifiable on the grounds of public policy or public safety and I think he was right to do so. As I have already observed, article 27.1 is cast in general terms and is capable of applying to any measures restricting freedom of movement which can be justified by reference to the provisions of the Directive. In my view the position is too clear to require a reference to the Court of Justice. I think his understandable concerns about the failure of article 27 to limit the permissible period of detention are met by the requirement of proportionality, which provides the kind of protection similar to that which the case of R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 W.L.R. 704 and subsequent authorities afford in a purely domestic context.[17]For these reasons I agree with the judge that administrative detention under regulation 24 is not incompatible with the Directive, provided that the safeguards for which it provides, which are themselves reflected in regulation 21, are met. The power in section 36(1) of the UK Borders Act 2007 to detain those who have served a sentence of imprisonment can be exercised only for the purposes of implementing the provisions for automatic deportation contained in section 32(5), but that section is itself subject to the exceptions set out in section 33 and section 33(4) excludes 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 follows that EEA nationals cannot be detained pending deportation or removed otherwise than in accordance with the Regulations. The first period of detention[18]The third ground of appeal relates to the period from 3rd April to 11th May 2012, during which the appellant was detained ostensibly under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Mr. De Mello submitted that the appellant’s detention was unlawful because the provision had no application to his case.[19]By a letter dated 29th March 2012 the Secretary of State asked the Governor of HMP Wandsworth, where the appellant was then serving his sentence, to advise the appellant that she was considering whether to deport him on the grounds of public policy. He was to be told that he had 20 working days to submit any reasons why he should not be deported. It appears that this information was conveyed to the appellant on 3rd April 2012. At that point he could expect no decision to be taken until the time allowed for him to make representations had expired. However, on the same day the appellant was served with a notice of a decision to make a deportation order against him under regulation 19(3)(b) and to make an order for his detention under regulation 24(3). Also on 3rd April 2012 the appellant was given a letter, wrongly dated 29th March 2012, informing him that on 3rd April 2012 he had been served with a notice of intention to make a deportation order against him and the reasons for doing so. A warrant for his detention had already been issued on 27th March 2012, to be executed only after notice of the decision to make a deportation order had been given to the appellant. The warrant stated that it had been issued under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Between 3rd April and 11th May 2012 the appellant was detained pursuant to that warrant.[20]The appellant’s detention was vigorously challenged by his solicitors in a letter to the UK Border Agency dated 12th April 2012 on the grounds that he had not been allowed 20 working days to make representations opposing his deportation. Although a letter setting out the reasons for deportation was sent on 20th April 2012, the Secretary of State appears to have recognised that there was some force in the point, because in her summary grounds of defence in these proceedings filed on 11th May 2012 she purported to withdraw the decision to deport him. He was granted bail on 31st May and released from detention on 6th June 2012.[21]Mr. De Mello submitted that the appellant’s detention between 3rd April and 11th May 2012 was unlawful because it had taken place in the exercise of the power under paragraph 2(2) of Schedule 3, which did not apply to him. However, Mr. Auburn objected that the appellant had not been given permission to pursue this argument below and for that reason it had not been considered by the judge. He submitted that the appellant should not be allowed to introduce it at this stage in the proceedings.[22]In paragraph 12 of his judgment the judge noted that Mr. Auburn had accepted that the withdrawal of the notice of intention to make a deportation order against the appellant rendered that notice null and void ab initio and that as a result it was common ground that the appellant was to be regarded as having been detained from 3rd April 2012 pursuant to regulation 24(1) rather than regulation 24(3). That concession may well have paved the way for the appellant’s other grounds of appeal, but I do not think that it went any further than that. At all events, when the judge summarised the main issues which the appellant sought to raise he did not include any reference to the argument which the appellant now wishes to advance. He did, however, include as the final issue the broadly worded question whether the appellant’s detention was and remained unlawful. The judge answered that question in the negative.[23]The judgment is careful and detailed, but one finds in it nothing to indicate that the present argument based on paragraph 2(2) of Schedule 3 was pursued before the judge. His conclusion on the final issue was based on the conclusions he had reached on the earlier issues. To me that is in itself a powerful indication that the argument was not deployed below. In that section of his skeleton argument for the hearing before the judge which dealt with this issue Mr. De Mello relied on the Secretary of State’s alleged failure to comply with the requirements of regulation 21(5) and 21(6) and article 27 of the Directive. He did not contend that the appellant’s detention was unlawful by reason of the erroneous use by the Secretary of State of her powers under paragraph 2(2) of Schedule 3. In those circumstances I do not think that it would be right to allow the appellant to take what is for all practical purposes a new point at this stage in the proceedings. As May L.J. pointed out in Jones v MBNA International Bank [2000] EWCA Civ 514, parties to litigation are entitled to know what issues they have to deal with and should not be required on appeal to face new challenges which were not raised in the court below. In general that is particularly true of proceedings for judicial review, which, in the absence of orderly case management, have a tendency to develop in ways that lack the degree of precision necessary to ensure fairness to both parties. Unlawful discrimination[24]The appellant’s fourth ground of appeal is that his detention under regulation 24(1) was unlawful because it discriminated against him on the grounds of nationality, contrary to article 18 of the Treaty.[25]Mr. De Mello submitted that the position of EEA nationals in relation to detention pending removal under regulation 24(1) is less favourable than that of other foreign nationals, who by virtue of paragraph 2(2) of Schedule 3 to the Immigration Act 1971 can be detained pending deportation only after they have been notified of a decision to make a deportation order against them.[26]It is important to note at the outset that the comparison which Mr. De Mello seeks to draw is between EEA nationals and third country nationals; he does not suggest that the legislation discriminates between EEA nationals of different of Member States (other than nationals of this country who cannot be deported). I accept that (except in the case of foreign criminals who have served a term of imprisonment of 12 months or more) foreign nationals who are not EEA nationals cannot be detained until they have been served with a notice of a decision to make a deportation order against them and that to that extent their position is more favourable than that of EEA nationals. However, I am unable to accept that that amounts to unlawful discrimination on the grounds of nationality within the meaning of article 18 of the Treaty.[27]In support of his argument Mr. De Mello drew our attention to the case of Garcia Avello v Etat Belge Case C-148/02 [2004] 1 CMLR 1. The circumstances of that case, however, are far removed from those of the present. Mr. Garcia Avello (a Spanish national) and his wife, Mrs Weber (a Belgian national), lived in Belgium. Their children held dual Belgian and Spanish nationality. Belgian law required them to take the surname of their father, so on their birth certificates they were given the name Garcia Avello. However, the custom in Spain is for children to take the first surname of each of their parents, which would result in the name Garcia Weber. An application was made for the children’s birth certificates to be altered accordingly. The European Court of Justice held that the principle of non-discrimination enshrined in article 12 of the treaty (now article 18) required that different situations must not be treated in the same way. Accordingly, persons with dual nationality were entitled to be treated differently from persons with single nationality.[28]The decision is unsurprising, but I do not think that it has any bearing on the present case. The case was concerned with the treatment of EU citizens of different nationalities, a comparison being drawn between those of single (Belgian) nationality and those of dual (Belgian/Spanish) nationality. It is not concerned with discrimination between those who are EEA nationals and those who are nationals of other states. Nothing in the judgment supports the conclusion that article 18 of the Treaty is concerned with questions of that kind. In my view this limb of Mr. De Mello’s argument proceeds on a false hypothesis based on a fundamental misunderstanding of the nature and effect of article 18. Equality of treatment among EU nationals is one of the cornerstones of the European Union, but that article is not concerned with the way in which Member States treat nationals of other countries who reside within their territories, provided that they do not undermine the laws of the Union. Consistently with the purpose of the Treaty, which is to establish the fundamental legal architecture of the Union, article 18 is concerned only with the way in which citizens of the Union are treated in Member States other than those of which they are themselves nationals. The argument therefore falls down at the first hurdle.[29]However, the difficulties do not end there. In seeking to compare the position of EEA nationals with that of nationals of other countries Mr. De Mello sought to focus exclusively on the Secretary of State’s power of detention, but that is to view the matter too narrowly. As the judge pointed out, the provision for detention in each case forms part of a wider regime dealing with removal. Unlike nationals of other countries, nationals of the EEA are entitled to reside in this country and enjoy the protection from removal afforded by the Treaty and the Directive. They are subject to a different legal regime which cannot be directly compared to that which applies to other foreign nationals, who can be deported if the Secretary of State deems their removal to be conducive to the public good: see section 3(5)(a) of the Immigration Act 1971. For both these reasons I agree with the judge that Mr. De Mello’s argument is fundamentally flawed and that there is no substance in this ground of appeal. Unreasonable exercise of power[30]The appellant’s final ground of appeal is that the Secretary of State exercised her powers under the Regulations unlawfully because she had no grounds for suspecting that the appellant was a person who might be removed from the United Kingdom apart from the fact of his convictions, which by virtue of regulation 21(5)(e) were incapable of justifying a decision to remove him. In my view this argument reflected an unduly restrictive approach to the construction of that regulation, the purpose of which is to preclude removal simply on the grounds that the person in question has criminal convictions, regardless of the conduct which has given rise to them. I think it highly unlikely that article 27.2 of the Directive, which is reflected in regulation 21(5)(e), was intended to prevent Member States from removing persons who by their behaviour have demonstrated that they pose a significant threat to public policy or public safety simply because that behaviour has led to a criminal conviction. What matters for these purposes is the behaviour rather than the conviction. However, it is unnecessary to reach a final decision on that question since the appellant was not given permission to pursue the argument before the judge and did not do so. Indeed, as I have already noted, the judge recorded that he expressly accepted that he could not challenge the Secretary of State’s decision on the grounds of irrationality. Mr. De Mello told us that the concession to which the judge referred was limited to the existence of the facts set out the UK Border Agency’s letter of 20th April setting out at length the reasons for the decision to deport him. Whether that is so or not, the argument was not pursued before the judge and for the reasons indicated earlier it is not in my view open to the appellant to raise it at this stage.[31]For all these reasons I would dismiss the appeal.

Lord Justice Briggs :

[32]I agree.

Lord Justice Christopher Clarke :

[33]I also agree.

Cited in 6 later judgments