Nouazli, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 567 (Admin)

Case No CO/4460/2012[2013] EWHC 567 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/03/2013
Before
THE HON. MR JUSTICE EDER
Between
THE QUEEN ON THE APPLICATION OF RACHID NOUAZLIClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Ramby de Mello and Mr Danny Bazini (instructed by Lawrence Lupin Solicitors) for ClaimantMr Jonathan Auburn (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 6 and 7 March 2013
Judgment

Introduction

[1]These proceedings concern the power of the Defendant (“SSHD”) to detain a family member of a national of the European Economic Area (“TCN”) pending(i) consideration by the SSHD of a decision to remove i.e. deport such an individual; and(ii) removal/deportation of such an individual following a decision to remove/deport lawfully taken.[2]The SSHD says that such power exists under Regulation 24(1) and 24(3) respectively of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003, the “2006 Regulations”) which provide as follows: 24Person 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, and paragraphs 17 and 18 of Schedule 2 to the 1971 Act shall apply in relation to the detention of such a person as those paragraphs apply in relation to a person who may be detained under paragraph 16 of that Schedule……. (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.”[3]On behalf of the Claimant, it is submitted that these regulations are incompatible with EU law; that they are (at least in relevant respect) therefore invalid and of no effect; and that the Claimant (who was detained pursuant to such regulations) is entitled to declaratory relief and damages as set out below. Those are the essential issues which lie at the heart of these proceedings.

Background Facts

[4]The Claimant is an Algerian national. He was born in 1968. He arrived in the United Kingdom in March 1996. In June 1997 he married a French citizen. In 1998 he was granted a right of residence as a family member of an EEA national. Over the past 10 years or so, the Claimant has been subject to some 28 criminal convictions for some 48 offences. In addition, he has failed to comply with conditions placed upon him by the police and the courts. In particular, he has failed to comply with conditions of his stay, temporary admission or release. For example, he was granted temporary admission and instructed to report to Becket House from 14June 2006 to 1 July 2006 but consistently failed to report. He failed to surrender to bail; breached a community rehabilitation order, failed to comply with the requirement of a community order and failed to surrender to custody.[5]On 8 January 2007, the SSHD made the decision to remove/deport the Claimant in light of the convictions he had obtained at that point. The Claimant appealed against that decision and his appeal was allowed by the Asylum and Immigration Tribunal (“AIT”) on 3 November 2008. Notwithstanding, the Claimant has reoffended on numerous occasions since the AIT allowed his appeal. Most recently, on 25 January 2012, the Claimant was convicted of theft for which he was sentenced to a further term of imprisonment with a release date of 3 April 2012. The First

The First Order: Detention of the Claimant

[6]On that date i.e. 3 April 2012 on or immediately prior to his release from HMP Wandsworth, the Claimant was served with a notice of “Decision to make a Deportation Order” by the Home Office UK Border Agency on behalf of the SSHD (“First Order”) which stated amongst other things as follows:
“On 25 January 2012 at Central London Magistrates Court, you were convicted of theft. The Secretary of State has considered the offence of which you have been convicted and your conduct in accordance with regulation 21 of the Immigration (European Economic Area) Regulations 2006. She is satisfied that you pose a genuine, present and sufficiently serious threat to the interests of public policy if you were to be allowed to remain in the United Kingdom and that your deportation is justified under Regulation 21. She has therefore decided under Regulation 19(3)(b) that you should be removed and an order made in accordance with Regulation 24(3), requiring you to leave the United Kingdom and prohibiting you from re-entering while the order is in force. For the purpose of the order section 3(5)(a) of the Immigration Act 1971 will apply.”
[7]I have already set out Regulation 24(3) above. In addition, I should set out the relevant parts of Regulation 19 and 21 as referred to above:
“19Exclusion 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. “21Decisions taken on public policy, public security and public health grounds (1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health. (2) A relevant decision may not be taken to serve economic ends. ……. ……. (5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles— (a) the decision must comply with the principle of proportionality; (b) the decision must be based exclusively on the personal conduct of the person concerned; (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; (e) a person's previous criminal convictions do not in themselves justify the decision. (6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin….”
[8]On the same date i.e. 3 April 2012, the Claimant also received two further letters from the Home Office UK Border Agency. The first dated 29 March 2012 referred to the said notice and stated “….as the subject of deportation action you are liable to detention under Schedule 3 to the Immigration Act 1971 (as amended).” The letter continued as follows “While there is a presumption in favour of release, because of your criminality, the likelihood of reoffending, the seriousness of the harm to the public should you re-offend and/or high risk of absconding, there is reason to believe you would not comply with any restrictions attached to your release. The Secretary of State, having carefully considered the particulars of your case, is satisfied that your detention is justified under the powers contained in Schedule 3 of the Immigration Act 1971. It has been decided that you should be detained because: To effect removal from the United Kingdom. You are likely to abscond given temporary admission or release. You have previously failed to comply with conditions of your temporary release or bail. Your release carries a high risk of public harm. There is a risk of further re-offending.” The letter continued by setting out a series of factors which were stated to be the basis of the decision including reference to the fact that the Claimant had committed numerous offences, that “there is a significant risk you will reoffend” and the Claimant’s “…unacceptable character, conduct or associations….”. The second letter stated that the SSHD had noted his conviction on the 25 January 2012 for theft, that she took a very serious view of that offence and, in light of that conviction, was considering his liability to deportation on grounds of public policy. The letter continued:
“If you feel that there are any reasons why you should not be deported to Algeria on completion of your sentence you should submit these in writing….within 20 working days of this notification.”
It has been decided that you should be detained because: There is a risk of further re-offending.”

It has been decided that you should be detained because:

[9]Pursuant to the First Order, the Claimant was detained on 3 April 2012 and continued under detention in custody until (as referred to below) he was released on bail on 6 June 2012.[10]Meanwhile, on 12 April 2012 the Claimant’s solicitors sent a pre-action protocol letter. The SSHD replied to this on 13 April 2012. On 26 April 2012 the SSHD sent the Claimant’s solicitors a letter explaining the reasons for the decision to deport; in particular, the letter explained that the deportation was justified on serious grounds of public policy.

The application for judicial review

[11]On 27 April 2012, the Claimant issued his application for judicial review. On 11 May 2012, the SSHD served her Acknowledgment of Service (“AOS”). Paragraph 3 stated that the SSHD withdrew her decision to deport the Claimant dated 3 April 2012 as notified in the First Order. Paragraph 4 of the AOS stated:
“It is submitted that the SSHD will notify the Claimant of any decision to deport following consideration of any representations received.”
After referring to Regulation 24 of the Regulations, paragraph 7 of the AOS stated:
“It is submitted that there is no requirement that the SSHD must have concluded all investigations into whether the Claimant is to be removed but may be in the process of considering as such. It is submitted that the Claimant’s extensive criminal convictions give the SSHD reasonable grounds for believing that he may be someone who may be removed from the United Kingdom under Regulation 19(3)”
. On that basis, the SSHD asserted, in paragraph 8 of the AOS that notwithstanding the withdrawal of the First Order, the Claimant’s detention remained lawful.[12]Before me, Mr Auburn on behalf of the SSHD accepted that the effect of the foregoing is that the First Order is to be regarded as null and void ab initio at least so far as it constituted a decision/notice to remove/deport; and it was thus common ground that the Claimant was, in effect, to be regarded as having been detained from 3 April 2012 not pursuant to Regulation 24(3) as referred to in the First Order but rather pursuant to Regulation 24(1).[13]On 16 May 2012, Mr James Dingemans QC sitting as a Deputy High Court Judge granted permission to apply for judicial review on one limited ground which was summarised on behalf of the Claimant in the following way:
“Was the detention of the Claimant under Regulation 24(1) EEA Regulations 2006 unlawful under EU law because the exercise of this power discriminated against him on grounds of nationality when compared with the detention of an alien in similar circumstances? ”

Release of the Claimant and grant of bail

[14]On 31 May 2012, the Claimant was granted bail (on conditions of residence, reporting and tagging) and subsequently released on 6 June 2012. The Claimant then continued on bail subject to conditions until at least 2 January 2013.

The Second Order

[15]On 7 September 2012 the Claimant received notification of a new “Decision to make a Deportation Order” (the “Second Order”) made by the SSHD. For present purposes that notice was in substantially similar form to the First Order. On the same date the Claimant also received a separate letter from the Home Office UK Border Agency, setting out the reasons for deportation. It is common ground that from that date i.e. 7 September 2012 until at least 2 January 2013, the Claimant is to be regarded as having been detained on bail pursuant to Regulation 24(3).[16]Thereafter, the Claimant appealed against the Second Order pursuant to Regulation 26 of the 2006 Regulations. In the event, that appeal succeeded as appears from a decision of the First-tier Tribunal (AIC) dated 2 January 2013 (IA/20294/2012). The SSHD did not seek to appeal or otherwise challenge that decision.[17]Thereafter, it is unclear on the material before me as to what happened. In particular, it is not clear whether the Claimant remained on bail subject to any, and if so what, conditions; or whether the Claimant was unconditionally released, and if so when. In the event, it was agreed between counsel for both parties that any remaining question(s) that might arise with regard to the lawfulness of the Claimant’s detention after 2 January 2013, if indeed he was detained in custody or on bail, should be adjourned with liberty to apply.

The grounds of judicial review

[18]Following the initial grant of leave to apply for judicial review on the single ground referred to above and prior to the present hearing, the Claimant sought to expand the grounds relied upon. These are now contained in the Claimant’s Amended Grounds dated 4 October 2012. As there set out, the main issues which the Claimant now seeks to raise are as follows: a) Whether the immigration detention of a third country national (TCN) family member of an EU national pending removal from the host Member State falls within the scope of Community law so as to afford the detained TCN protective rights under EU law or whether his detention is simply a matter falling within the scope of domestic law of the host Member State? b) Whether the immigration detention of a TNC pending removal following a conviction in the host Member State is prohibited under EU law? c) If the immigration detention of a TCN pending removal in these circumstances is permitted then does this detention have to comply with EU law? d) Is Regulation 24(1) and s 36 (1) UKBA 2007 compatible with EU law? e) Was the detention of the Claimant under Regulation 24(1) EEA Regulations 2006 unlawful under EU law because the exercise of this power discriminated against him on grounds of nationality when compared to the detention of an alien in similar circumstances? f) Was the detention of the Claimant unlawful from the 3rd April 2012 until the date of his release on the 6th June 2012; and continuing until the present time whilst he is on bail?[19]The original grounds in respect of which leave was given are as set out without underlining in sub-paragraphs e and f above. On behalf of the Claimant, Mr de Mello accepts that the remainder (which are underlined) do not fall within the original leave granted by the Court; and that the Claimant needs leave to pursue these grounds. In that connection, there have previously been various applications on paper and direction hearings. For present purposes, it is sufficient to note that it was previously ordered that there should be a “rolled-up” hearing. On behalf of the SSHD, Mr Auburn submitted that leave should be refused on various grounds including(i) the application to amend the grounds was not made promptly or within the 3 month period stipulated in CPR 54(5) and was therefore “out of time”; and(ii) the new grounds did not in any event have sufficient merit. In the event, I have decided to grant leave in respect of these new grounds having regard, in particular, to the following matters: (i) although the new draft grounds were served “late” when the period is calculated from 3 April 2012, it is not clear to me that that is necessarily the correct starting date in particular in light of the events which took place after that date and the further matters referred to below; and, in any event, the overhang was relatively short; (ii) they raise potentially important issues which affect the liberty of the subject; and(iii) although these new issues are discrete, they are closely aligned with the main point in respect of which leave has already been given.[20]In light of the above, the question as to the lawfulness of the detention of the Claimant falls to be determined having regard to two main periods, i.e. i) Period 1 is the period from 3 April 2012 until 7 September 2012 when the Claimant was being detained in custody or (after 6 June 2012) on bail subject to conditions and there was, in effect, no valid decision by the SSHD to remove/deport the Claimant. As stated above, it is common ground that the Claimant is to be regarded as being detained during this period pursuant to Regulation 24(1); ii) Period 2 is the period following 7 September 2012 until (at least) 2 January 2013 when the Claimant remained on bail subject to conditions during which period there was in existence the Second Order and the Claimant was being detained pursuant to Regulation 24(3). For the avoidance of doubt, I should make plain that Mr de Mello accepted that although the Claimant’s appeal was allowed on 2 January 2013 it did not operate retrospectively to render the Second Order null or void ab initio.[21]It is important to note – and indeed to emphasise - that Mr de Mello accepted that he cannot and does not seek to challenge the decisions of the SSHD to detain the Claimant as set out in the First Order or the Second Order on grounds of Wednesbury unreasonableness or irrationality. Nor does he seek to argue that the SSHD has in fact acted contrary to the principle of proportionality or otherwise unlawfully by reference, for example, to the time taken initially by the SSHD to decide whether or not to remove/deport the Claimant; or to the length of the detention of the Claimant; or to the fact that he was on bail for at least 6 months; or the terms upon which the Claimant was released on 6 June 2012 and thereafter remained on bail until at least 2 January 2013. The present attack is limited to the grounds set out above.

Relief sought

[22]The relief sought is as follows:(i) A declaration that the immigration detention of a TCN (family member of an EU member exercising community rights) pending removal following a conviction in the host Member State is prohibited under EU law namely the TFEU and CD.(ii) A declaration of incompatibility between Regulation 24(1) and s.36(1) United Kingdom Border Act 2007 with that of Art 27 CD.(iii) A declaration that the detention of the Claimant under Regulation 24(1) EEA Regulations 2006 was unlawful under EU law because the exercise of power discriminated against him on grounds of nationality when compared to the detention of an alien in similar circumstances.(iv) A declaration that the detention of the Claimant was unlawful from the 3 April 2012 until the date of his release on 6 June 2012; and continuing until the present time whilst he is on bail.(v) An order that the Claimant is entitled to damages if the detention is unlawful. Damages to be assessed if not agreed.(vi) Costs.

The issues

[23]Against that background, I turn to consider the case advanced on behalf of the Claimant that his detention was unlawful during Period 1 and/or Period 2 on the basis that Regulation 24(1) and/or 24(3) was incompatible with EU law.[24]As to this issue, there was, at least initially, some confusion. On behalf of the Claimant, it was originally asserted that the SSHD was wrong to suggest in effect that detention is outside the scope of EU law. However, Mr Auburn submitted that this misstates and misunderstands the SSHD’s case i.e. the SSHD was not saying that the matter in issue was outside the scope of EU law. On the contrary, Mr Auburn accepted that the overall system of immigration removals falls within the scope of EU law. It follows that the answer to the question as posed is: The immigration detention of a third country national (TCN) family member of an EU national pending removal from the host Member State falls within the scope of EU law so as to afford the detained TCN protective rights under EU law. However, as Mr Auburn submitted, it remains necessary to consider the relevant scope of EU law as referred to in the context of the other issues now raised.[25]These three issues overlap to a large extent and it is convenient to address them together. However, before considering the parties’ submissions in this context, I should clarify two points.[26]First, it was common ground that the arguments which arise in relation to these three issues relate solely to Regulation 24(1) and therefore are only relevant to Period 1. They do not affect the validity of Regulation 24(3) or the lawfulness of the Claimant’s detention during Period 2.[27]Second, it is necessary to explain the reference to s.36 of the United Kingdom Border Act 2007 (“2007 Act”). As stated above, it is the SSHD’s case that the Claimant was lawfully detained pursuant to Regulation 24(1) and, after 7 September 2012, Regulation 24(3). However, in the alternative, the SSHD submitted that if such detention on such basis was unlawful, the Claimant’s detention was lawful under s.36 of the 2007 Act; alternatively that the SSHD was entitled to detain and would have detained the Claimant under the 2007 Act and therefore any damages recoverable by the Claimant would be nominal only. This was disputed by Mr de Mello on various grounds. However, in the event, the parties agreed that if I were to conclude that the detention of the Claimant was lawful under the 2006 Regulations, it was unnecessary for me to determine this dispute and I should not do so.[28]So, turning to these three issues, the starting point, submitted Mr de Mello, is the Treaty on the Functioning of the European Union (“TFEU”) including Articles 18, 20, 21, 45.1, 45.3(b), 49 and 67. In particular, he relied upon Articles 20 and 21 of the TFEU which provide in material part as follows. “Article 20: 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union….. “2 Citizens of the Union shall enjoy the rights and be subject to the duties provided for by the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States…. “Article 21 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States….” (a) the right to move and reside freely within the territory of the Member States….[29]In addition, Mr de Mello relied upon the various rights to exit, entry and residence as set out in Directive 2004/36/EC of the European Parliament and of the Council of 29 April 2004 (the “Citizenship Directive” or “CD”) which was (at least purportedly) implemented by the 2006 Regulations. In particular, he relied upon CD Recitals 5, 23, 24 and 31 as well as Articles 3, 24 and 27. The two last provided in material part as follows:
“Article 24: Equal Treatment 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, 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…. “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….”
[30]It was common ground that although the Claimant is himself not a national of the United Kingdom nor any other Member State, he is a family member of an EEA national and, by virtue of CD Articles 3 and 24, he is therefore entitled to the protection and benefits accorded by, in particular, the Citizenship Directive.[31]In light of the above, Mr de Mello submitted that there is nothing in the TFEU which expressly permits a Member State to detain an EEA national or TCN. Mr Auburn accepted that this was so. He also accepted that the present case does not concern detention in the context of substantive criminal law which falls outside the scope of EU law unless it falls within the scope of Articles 82, 83 and 85 of the TFEU; that the Claimant’s release from HMP Wandsworth under the Criminal Justice Act 2003 meant that his detention under the criminal law came to an end and his detention thereafter was undertaken with a view to his expulsion from the United Kingdom; that his detention ceased being a detention under the sentence imposed on him by the Crown Court; and that thereafter his detention was an administrative one authorised by the SSHD under the 2006 Regulations, in particular Regulation 24(1) in respect of Period 1; and Regulation 24(3) in respect of Period 2.[32]However, Mr de Mello submitted that Regulation 24(1) was incompatible with CD Article 27 and was therefore invalid. In support, he advanced two main arguments. A. CD Article 27 expressly or impliedly prohibits any detention prior to a decision to remove.[33]First, Mr de Mello submitted that CD Article 27 was in effect a derogation of the right of liberty and freedom of movement; that on that basis CD Article 27 should be construed narrowly; and that, as a matter of language, the wording was not wide enough to cover any detention pending a decision to remove/deport. Mr de Mello is, of course, right that CD Article 27 operates as a derogation of the right of liberty and freedom of movement. However, in my judgment, the words “…may restrict the freedom of movement…” are, as a matter of ordinary language, wide enough to include any detention of any kind subject, of course to the remainder of the wording in CD Article 27 i.e. that any detention is on one or more of the grounds stated in Article27.1 and also satisfies the requirements of Article27.2 including the “principle of proportionality”.[34]In support of his submission, Mr de Mello also sought to rely upon a separate Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the “Return Directive”). In particular, Mr de Mello referred to Article 15 of the Return Directive which sets out a particular regime for detention of certain groups of people and, in particular, seeks to limit the power of Member States to detain a TCN who is the subject of return procedures. In summary, Mr de Mello submitted that if CD Article 27 had the breadth suggested by the SSHD there would have been no need for the regime set out in Article 15 of the Return Directive. I do not accept that submission. In my view, it is relatively plain, as shown, for example, by Recital 20 in the Return Directive, that the objective of the Return Directive was to establish common rules concerning the return, removal, use of coercive measures, detention and entry bans in the stipulated circumstances. On this basis, it does not seem to me that the harmonisation regime set out in Article 15 of the Return Directive says anything necessarily about the scope of CD Article 27.[35]For these reasons, I reject Mr de Mello’s first submission. In particular, it seems to me that CD Article 27 does not restrict, but on the contrary expressly permits a Member State to restrict freedom of movement of any TCN subject always to the conditions set out in CD Article 27. B. Regulation 24(1) inconsistent with CD Article 27[36]Mr de Mello’s second main submission was founded upon a comparison between CD Article 27 and Regulation 24(1) viz. Regulation 24(1) is invalid because it permits detention in circumstances which fall outwith or extend beyond CD Article 27. In particular, Mr de Mello further submitted, in summary, as follows: a) “Regulation 24(1) does not transpose CD Article 27 correctly as the former allows for detention if the decision maker has ‘reasonable grounds for suspecting he is someone who may be removed on grounds of public policy…’ even before a decision is taken to remove him. b) Under CD Article 27, for any detention pending removal to be lawful the decision maker must believe that his detention is necessary on one of the specified grounds, complies with the principle of proportionality and is based exclusively on his personal conduct; and that his previous criminal convictions do not in themselves justify detaining him. c) Since compulsory detention constituted a deprivation of liberty, the circumstances in which detention is permitted must be interpreted strictly as an exception to the fundamental guarantee of individual liberty. d) Any detention pending removal must at least satisfy the conditions set out in Article 27(2) and Article 30. Regulation 24(1) does not sit easily with or conform to the requirements of Articles 27 or 28. e) As the removal is contemplated on public policy grounds, there is no reason why the detention pending his removal should be on lesser grounds without reasonable foundation for detaining him. It is artificial to apply a different proportionality test to cases of detention at the point of deportation pending removal on public policy grounds. f) CD Articles 27-30 do not contemplate that a decision to detain a TCN prisoner is taken before taking a decision to remove. g) The grounds for detaining a TCN under Regulation 24(1) pending removal must satisfy the same test of public policy etc and not simply based on a lesser level than is ‘reasonable grounds for suspecting’ and that he is a person who ‘maybe removed’ under those admissible grounds. There must be a requirement for example that the detention be reasonably considered necessary, for example to prevent the person concerned of committing an offence or fleeing.”[37]In support of the above, Mr de Mello relied on a number of authorities including C-48/75 Royer [1977] ICR 314 at 43-51 and C-215/03 Oulane [2005] QB1055 at 5-6 and 44. He also relied on the Advocate-General Opinion in Oulane, at paragraphs 97 to 101.[38]These various arguments overlap somewhat. As it seems to me, the highpoint of Mr de Mello’s submission is an important but simple point viz. where a decision has not yet been made to remove under Regulation 19(3)(b) and is therefore still pending, any restriction of movement cannot be on any of the grounds stipulated in CD Article 27 ex hypothesi because no decision has yet been made to remove; and if that is right any detention pursuant to Regulation 24(1) pending such decision to remove falls foul of CD Article 27. However, it seems to me that the fallacy in that argument is the assumption or underlying premise that until a decision to remove has been taken on one or more of the stipulated grounds, any detention pending such detention cannot be on grounds of public policy or public safety. In principle, I see no reason why this should be so; and the cases cited by Mr de Mello do not, in my view, assist. In particular, I see no reason in principle why even though a decision to remove has not yet been made on grounds of public policy or public safety a decision to detain pending such decision cannot or should not be made on grounds of public policy or public safety.[39]I fully recognise that this constitutes or at least may constitute a very significant restriction on the right of liberty and freedom of movement. I am also troubled by the fact that Regulation 24(1) is, on its face, unlimited in time i.e. it would seem to permit detention for an uncertain period of time even before an actual decision has been taken to remove on grounds of public policy or public safety. However, provided of course the conditions set out in CD Article 27(1) and (2) are satisfied, I see no necessary incompatibility between Regulation 24(1) and CD Article 27. Moreover, the power contained within Regulation 24(1) to detain pending a decision to remove only arises where there are “reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under Regulation 19(3)(b)…”. Thus, the power depends upon the existence of the stipulated “reasonable grounds” which, as Mr Auburn accepted, imports an objective test. Further, there is, of course, the safeguard contained in CD Article 27(2) i.e. the necessity to comply with the principle of proportionality.[40]For the avoidance of doubt, I should emphasise that Mr de Mello accepted that neither the First Order nor the Second Order could be attacked in fact on the basis of absence of reasonable grounds or otherwise – for example, on the basis that the detention of the Claimant was not in accordance with the principle of proportionality.[41]For these reasons, it is my conclusion that, subject to Issue 5, the answers to Issues 2, 3 and 4 are as follows: i) Issue 2: The immigration detention of a TCN pending removal following a conviction in the host Member State is not prohibited under EU law. ii) Issue 3: The immigration detention of a TCN pending removal in these circumstances does have to comply with EU law. iii) Issue 4: Regulation 24(1) is compatible with EU law. A. The Claimant’s submissions with regard to “discrimination”[42]Although this issue was originally formulated by reference to Regulation 24(1), it was Mr de Mello’s submission that it arises equally in the context of both Regulation 24(1) and 24(3). On this basis, it is relevant to both Period 1 and Period 2.[43]In relation to this issue, Mr de Mello relied in particular on TFEU Article 10 (“In defining its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”) and Article 18 (“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited…”.) In particular, Mr de Mello submitted as follows: i) These provisions apply to EU nationals and their family members including a TCN such as the Claimant: see CD Recitals (5), (6), (20) , (31); C- 34/09 Zambrano –v-ONEM [2011] 2 C.M.L.R 1197 AG80, AG128, AG139, AG61; Case C-256/11 Derici CJEU at 70-72 and C 400/10 Mcb-v-E [2011] 3 WLR 699 at 49-53 and Case C-40/11 Iidia-v-Satdt Ulm AG70-74. ii) The prohibition of discrimination on grounds of nationality covers not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. Unless objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect nationals of other Member States more than nationals of the host State and there is a consequent risk that it will place the former at a particular disadvantage: Case C-73/08 Bressol and Chaverot and Others [2010] ECR I-0000, paragraphs 40 and 41. iii) More generally, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified:Case C-149/10 Chatzi [2010] ECR I-0000, paragraph 64.[44]I did not understand Mr Auburn to dispute any of the above. The real battleground emerged at the next stage when, relying on this principle of non-discrimination, Mr de Mello submitted that Regulations 24(1) and 24(3) were both discriminatory and therefore unlawful as a matter of EU law. The main thrust of this submission was founded on a comparison between, on the one hand, the position of a non-British citizen under Schedule 3 of the Immigration Act 1971 (“1971 Act”) and, on the other hand, the position of a EEA national or TCN under Regulation 24.[45]In order to understand this submission, it is necessary to explain the legal position of an individual who is not a British citizen. This is generally governed by the 1971 Act. In particular, s.3 of the 1971 Act sets out various circumstances which renders a non-British citizen liable to deportation including for example, under s.3(5), if the SSHD “…deems his deportation to be conducive to the public good” – what Mr Auburn referred to, by way of shorthand, as “conducive deportation”. Pursuant to s.5(5) of the 1971 Act, Schedule 3 of the 1971 Act has effect with respect to removal from the UK of persons against whom deportation orders are in force and with respect to detention or control of persons in connection with deportation. In particular, Schedule 3 of the 1971 Act contains provisions with regard to detention or control pending deportation. These provide, in material part, as follows:
“Detention or control pending deportation 2.- (1) Where a recommendation for deportation made by a court is in force in respect of any person, [and that person is not detained in pursuance of the sentence or order of any court], he shall, unless the court by which the recommendation is made otherwise directs, [or a direction is given under sub-paragraph (1A) below,] be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case [or he is released on bail]. ……… (2) Where notice has been given to a person in accordance with regulations under [section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)] of a decision to make a deportation order against him, [and he is not detained in pursuance of the sentence or order of a court], he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise).”
[46]Thus, it was common ground that under the 1971 Act, there was no general power to detain a non-British citizen pending the making of a deportation order. Rather, as appears from these provisions in Schedule 3.2, the power to detain pending deportation was limited to the three cases set out above i.e(a) where a recommendation for deportation is made by a court;(b) where notice has been given in accordance with regulations under s.105 of the Nationality, Immigration and Asylum Act 2002 of a decision to make a deportation order; or(c) where a deportation order is actually in force.[47]On this basis, Mr de Mello submitted as follows: i) Here, the SSHD has discriminated against the Claimant on grounds of nationality. This discrimination is incompatible with CD Article 24. In particular, the Claimant has been treated less favourably than a non-British citizen who has served a term of imprisonment (less than 12 months) and who is liable to deportation. Regulation 24(1) allows a person who is otherwise treated as being subject to deportation under s3(5)(a) and or s5(1) 1971 Act to be detained where no steps have yet been taken in the deportation process provided that the reasonable grounds for suspicion exists. A non-British citizen in similar placed circumstances will not be liable to be detained under Schedule 3 to the 1971 Act. ii) The less favourable treatment in this case is the detention of a person like the Claimant before any of the steps in paragraph 2(1)-(3) of Schedule 3 to the 1971 Act have been taken. a) First, Regulation 24(1) permits detention of a TCN pending removal even though none of the conditions set out in paragraph 2(1)-(3) of Schedule 3 to 1971 Act apply and where no formal steps have been taken in the deportation process provided that reasonable grounds for suspicion exist to detain him (i.e. where no formal steps have yet been taken in the deportation processes under paragraph 2(1)-(3)). Support for this view is found in the ‘Foreign National Prisoners’ LAG at §§ 9.75-9.78. b) Second, the detention of a TCN under Regulation 24(1) may be undertaken under the authority of an immigration officer whereas detention of a non-British citizen under para 2(2) Schedule 3 is undertaken by a senior immigration officer under the delegated authority of the SSHD: Oladehinde-v-IAT [1991] 1 AC 254. c) A TCN’s liability to detention under Regulation 24(1) is more readily permissible than is the detention of a non-British citizen who is liable to detention pending removal under Schedule 3 paragraphs 2(1)-(3) to the 1971 Act; the latter are only liable to detention if one of the conditions specified in paragraph 2(1)-(3) of Schedule 3 to the 1971 Act is satisfied or one of the necessary steps has been taken in relation to each paragraph. d) Regulation 24(1) impermissibly places the Claimant at a disadvantage in relation to non-British citizens who are not liable to automatic deportation.[48]In further support of his submission, Mr de Mello identified three sets of “comparisons” which demonstrated what he said was the discriminatory nature of Regulation 24(1) viz. a) A detained TCN family member of an EU national lawfully present in the UK (whether under Community or national law) with a TCN family member of a UK national or non UK national (lawfully present in the UK); b) A detained family member of an EU national lawfully present in the UK (whether under Community or national law) with a TCN family member of a UK national or non UK national (lawfully present in the UK); c) A detained EU national lawfully present in the UK (whether under Community or national law) with a TCN family member of a UK national or non UK national (lawfully present in the UK). In each of these cases, Mr de Mello submitted that the former may be detained under Regulation 24(1) even though a criminal court has not made a recommendation for his deportation (cf: 1971 Act, Schedule 3.2(1)), no notice of deportation has been issued against him (cf: 1971 Act, Schedule 3.2(2)) and there is no deportation order in force against him (cf: 1971 Act, Schedule 3.2(3)); that, in other words, the TCN family member/EU national can be detained under Regulation 24(1) even though none of the steps outlined in Schedule 3 have been taken; and that therefore the 2006 Regulations place EEA nationals and their family members including TCN family members at an impermissible relevant disadvantage when compared to the comparator group in the context of detention pending removal.[49]In support of the above, Mr De Mello relied in particular on a number of authorities including C-148/02 Avello [2004] 1 CMLR 1 at H5-H7 and 22-31; C-215/03 Oulane [2005] QB1055 at 43-44; C-193/94 Skanav [1997] RTR at 36-38 and C265/88 Messner [1991] 2 CLMR 545 at 14.[50]Initially, these submissions were advanced solely in the context of Regulation 24(1). However, Mr de Mello submitted that similar arguments applied equally to Regulation 24(3) and therefore Period 2. B. The SSHD’s submissions with regard to discrimination[51]In response, Mr Auburn submitted in summary as follows: i) Regulations 24(1) and (3) do not discriminate on grounds of nationality. Regulation 24 of the 2006 Regulations applies to both EEA nationals and their family members, who could be of any nationality other than British. Thus the detention provisions do not discriminate on grounds of nationality. ii) Similarly, to the extent that the Claimant relies on Article 18 TFEU, this does not protect the rights of non-EEA nationals, as a group, from discrimination: see C-103/08 Gottwald [2009] ECR I-9117, §24; and C-184/99 Grzelczyk [2001] ECR I-6193, §§30-31, 36. iii) The Claimant has not cited any authority to support the proposition that a Community law non-discrimination provision, which applies to discrimination between nationals of one Member State as compared with nationals of other Member States, can apply to a measure affecting all members of the EEA and their TCN family members as a group, as compared with those who are not within that group. iv) Even if Regulation 24 is inconsistent in some respect with the principle of equal treatment (which is denied), any such inconsistency could not avail this Claimant in any event. v) In any event the Claimant has not been subject to less favourable treatment as compared with a non-EEA national or a family member of the same. Comparison of the powers of detention under the 2006 Regulations with the powers in the 1971 Act is a flawed exercise. In particular, the Claimant’s comparator posits two people, one of whom enjoys EU rights (i.e. rights afforded to EEA nationals and their family members) and one who does not enjoy such rights. It is misconceived to treat as comparable, for the purposes of a discrimination/equal treatment argument, persons within EU protection and persons outside EU protection. vi) A less inappropriate comparison is between the powers in the EEA Regulations and those in the 2007 Act. As to this latter comparison, Regulation 24 only applies in relation to removal pursuant to Regulation 19(3); the only relevant limb of Regulation 19(3) is sub-paragraph (b); the SSHD did not use Regulation 19(3)(a) for removals under the 2006 Regulations, and the Regulation 24 power to detain is now limited to furtherance of Reg 19(3)(b), not (a). Thus the provision will only be used for removals justified on grounds of public policy, public security or public health in accordance with Regulation 21. Similarly, by the 2007 Act, s.36(1) foreign nationals (who include non-EEA nationals and their family members) who have served a period of imprisonment may be detained “while the Secretary of State considers” whether the relevant provision applies” and “where the Secretary of State thinks that” the relevant provision applies, “pending the making of the deportation order”. vii) The “public policy, public security or public health” test in Regulation 19(3)(b) means that in practice the Regulation 24 power to detain is not used in a wider range of circumstances than the 2007 Act power. Thus the expanded power of detention applies in a similar manner to both EEA and non-EEA nationals. In both cases there is a power to detain pending a decision as to whether to deport. viii) If anything it is the provisions of the 2007 Act which apply to all foreign nationals, which are wider than the detention powers under the 2006 Regulations. In particular s36(1)(a) of the 2007 Act allows the SSHD to detain any person who has served a period of imprisonment while the SSHD considers whether the automatic deportation provisions apply. ix) The Claimant cannot make good his claim that he has been placed at an unfair disadvantage as a result of the fact that he is the family member of an EEA national. As regards this Claimant, there was no discriminatory treatment. He could have been detained prior to the making of the deportation order under the 2006 Regulations or the provisions of the 2007 Act. x) The alleged difference in treatment is of no substance, but has in any event been overtaken by the fact that the Regulations now confer the power on the SSHD rather than an Immigration Officer. xi) The attempt to derive a principle of non-discrimination from CD Article 24 is misconceived as this provides for non-discrimination as between nationals and non-nationals of the Member State. It is in any event subject to the limitations contained in the treaties and measures made pursuant to them, which clearly includes restrictions based on public policy etc. xii) Further, EEA nationals and their family members are not subject to a relative disadvantage when compared with non-EEA nationals and their family members. Put another way, non-EEA nationals and their families are not in a comparable position. The correct analysis is not as to principles governing immigration detention as a discrete issue. There are no express treaty rights relating to immigration detention. The proper analysis is as to immigration removal procedures overall. Therefore it is necessary to evaluate whether EEA nationals and their family members are subject to any disadvantage in the overall system of immigration removal. xiii) EEA nationals and their family members have the full benefit of the rights and more advantageous regime applying through inter alia the Citizenship Directive and the 2006 Regulations. xiv) EEA nationals and their family members benefit from extended rights which non-EEA nationals do not benefit from. This can be seen in the heading and Preamble to the Citizenship Directive:
“...on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States” cf: also Art 1(a): “This Directive lays down 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”
. Read with Art 2(1):
“For the purposes of this Directive ‘Union citizen’ means any person having the nationality of a Member State”
. The former (ie EEA nationals and their family members) thus have far greater opportunities to get into the UK in the first place. xv) Detention is only one part of immigration removal procedures, which overall are more favourable for TCN family members of EEA nationals than for non-EEA nationals. xvi) The Claimant is wrong to invite comparison of his position with the position of a TCN who is not owed the rights of citizenship and residence that the Claimant purports to have pursuant to the Citizenship Directive. Similarly, such a TCN would not have the benefit of TFEU Article 18. The Court is therefore being invited to compare two different groups of people. Regardless of whether the treatment of these two groups is different or not, the TCNs are not appropriate comparators. xvii) Further, EEA nationals and their family members can only be deported from the UK on grounds of public policy, public security or public health, and if their presence in the UK gives rise to a “genuine, present and sufficiently serious threat” : Regulation 21(5)(c). This imposes a higher threshold than for non-EEA nationals (and their family members), the latter being susceptible to deportation in a wider range of circumstances and subject to the lower threshold test of whether deportation is conducive to the public good: Immigration Act 1971, s.3(5)(a). xviii) In contrast, Regulation 24 applies where there are reasonable grounds for suspecting Regulation 19(3) is in issue, in accordance with Regulation 21. As mentioned, the SSHD only used the Regulation 24 power of detention in relation to cases falling under Regulation 19(3)(b), i.e. on grounds of public policy or public security. Regulation 24 has now been amended to expressly limit it to furtherance of Regulation 19(3)(b), not (a). Thus individuals only come within the scope of Regulation 24 if there are reasonable grounds for suspecting that there are “grounds of public policy or public security” justifying removal. Removal of EEA nationals and their family members is rare and requires grounds. The threshold for intervention is higher. The two groups do not have comparable starting points. xix) The considerations required to be taken into account pursuant to the ‘public policy, public security and public health’ test in Regulation 19(3) are sufficiently stringent that EEA nationals are not at a relative disadvantage overall. Thus the groups identified by the Claimant are not comparable. EEA nationals and their family members are not subject to a relative disadvantage in the measures taken overall. xx) If, contrary to the above, Regulation 24 could apply in a manner inconsistent with the principle of equal treatment, domestic courts dis-apply the domestic provision only to the extent necessary to avoid the incompatibility: eg Fleming v Customs & Excise Commissioners [2008] UKHL 2. In this present case it is clear that the provision in issue does not apply to this Claimant in a discriminatory manner, so there is no need to explore the extent of any possible disapplication of the domestic provision. This point alone provides a complete answer to this claim. C. Discussion[52]As to these (lengthy) submissions, I put on one side the arguments concerning the 2007 Act; and I accept, as did Mr Auburn, that the regimes which exist to detain, on the one hand, non-British citizens under Schedule 3 of the 1971 Act and, on the other hand, EEA nationals and their family members under the 2006 Regulations are different. In particular, I accept that in the case of the former, there is no power to detain pending a decision to remove/deport. However, in my view, this does not necessarily mean that there is any relevant disadvantage to EEA nationals or their family members or other discrimination in any relevant sense. In particular, it seems to me that, as submitted by Mr Auburn, the starting point is to recognise that under the Citizenship Directive and the 2006 Regulations (which were at least purportedly intended to implement the Citizenship Directive) EEA nationals and their family members benefit from extended rights which non-EEA nationals do not benefit from. Mr de Mello’s comparison exercise ignores this important aspect and for that reason alone is, in my view, fundamentally flawed.[53]Further, it is, in my judgment, also significant to take into account the different “tests” which exist for deportation/removal under, on the one hand, the 1971 Act and, on the other hand, the 2006 Regulations. As to the former and as already noted above, a non- British citizen is liable to deportation if the SSHD deems his deportation to be “conducive to the public good”. In my judgment, this is indeed a lower threshold test than that which exists with regard to the power of the SSHD to remove pursuant to Regulation 19(3)(b). In particular, the latter is limited to the grounds of public policy, public security or public health in accordance with Regulation 21. Again, Mr de Mello’s comparison exercise ignores this additional important aspect and for that reason as well is, in my judgment, fundamentally flawed.[54]Given these differences I do not consider that there is any proper basis for comparing the different circumstances which exist to deport/remove under each applicable regime. Nor do I consider that the authorities cited by Mr de Mello assist. It follows that I do not consider that either Regulation 24(1) or 24(3) gives rise to any relevant discrimination of a kind which offends EU law whether TFEU Article 10, CD Article 18 or otherwise.[55]For these reasons, I would answer issue 5: No.[56]It follows from all the above, that it is my conclusion that the detention of the Defendant in custody until 6 June 2012 and thereafter on bail until 2 January 2013 was not unlawful. As stated above, any question concerning the lawfulness of any detention thereafter is adjourned with liberty to apply.

Conclusion

[57]As to the issues raised and subject to any further submissions as to precise wording, my conclusions are therefore as follows: i) The immigration detention of a third country national (TCN) family member of an EU national pending removal from the host Member State falls within the scope of EU law so as to afford the detained TCN protective rights under EU law. ii) The immigration detention of a TCN pending removal following a conviction in the host Member State is not prohibited under EU law. iii) The immigration detention of a TCN pending removal in the present circumstances does have to comply with EU law. iv) Regulation 24(1) is compatible with EU law. v) The detention of the Claimant under Regulation 24(1) and/or 24(3) was not unlawful on grounds of discrimination under EU law. vi) The detention of the Defendant in custody until 6 June 2012 and thereafter on bail until 2 January 2013 was not unlawful.[58]In light of the above, Counsel are requested to agree a draft order including costs, failing which I will deal with any outstanding issue.

Order

Detention of the Claimant

Cited in 3 later judgments