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Questioning to establish whether a detained foreign national is lawfully in the UK under Operation Nexus is permissible

R (Centre for Advice on Individual Rights in Europe) v Secretary of State for the Home Department & Anor [2018] EWCA Civ 2837

Related Member(s):
Dan Squires QC, Anita Davies
Related Practice Area(s):
Immigration, Asylum and Free Movement, Public Law
Court:

This appeal considered the legality of aspects of Operation Nexus, which is a partnership between the Home Office and the Commissioner of Police for the Metropolis designed to establish whether or not a foreign national who is detained is lawfully in the UK. Examining the ‘custody strand’ of the Operation which deals with the identification of the immigration status of foreign nationals who have been arrested and are in custody, the Court dismissed the appeal on both grounds, holding that the questioning and verification in the identification is permissible. The Court held that the prohibition on systematic verification in  the Citizenship Directive, art 14(2) is not infringed by Operation Nexus. This is because, following the CJEU decision in Commission v UK, the Court concluded that merely asking for verification is not unlawful systematic verification. The process of gathering information is therefore separate from the process of verification which, if systematic, is prohibited by art 14(2). The Court also held that the police can lawfully ask arrested persons about their immigration status. Police officers have power at common law to ask questions of individuals and provide the answers to the Secretary of State in order to assist him in the exercise of his governmental function of enforcing immigration law. This is because as a matter of capacity, a police office has the power to do anything an ordinary citizen can do, including non-coercive questioning of a person in custody; and in any event, the questioning is for a police purpose.

Dan Squires QC and Anita Davies were involved in this case.