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Power to detain prior to deportation does not discriminate against EEA nationals

R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16

Related Member(s):
Prof. Takis Tridimas
Related Practice Area(s):
Discrimination and Equality, Immigration, Asylum and Free Movement, EU Law
Court:

On appeal from: [2013] EWCA Civ 1608

The Supreme Court unanimously dismissed the appeal concerning whether the power under the Immigration (European Economic Area) Regulations 2006, reg 24(1), to detain prior to a deportation decision, discriminates against EEA nationals and their family members without lawful justification.

The appellant, an Algerian married to an EEA national, was detained pursuant to reg 24(1) pending a decision being taken whether to deport him. There is no equivalent provision for pre-decision detention in relation to family members of British nationals or non-EEA nationals, unless the detainee has previously been sentenced to a custodial sentence of more than 12 months. The appellant contends that the detention was unlawful in that it was discriminatory and inconsistent with EU law, in particular, article 27 Directive 2004/38/EC and article 18 TFEU.

Delivering the leading judgment, Lord Clarke stated that the power to detain under reg 24(1) does not discriminate without lawful justification against EEA nationals and their family members. He clarified that the general principle is that article 18 TFEU is only concerned with the way in which EU citizens are treated in member states other than their states of nationality, and not the way in which member states treat nationals of other countries residing within their territories. Third country nationals are not appropriate comparators for testing discrimination: such “discrimination” is simply a function of the limited scope of the EU legal order, into which third country nationals do not fall.

In regards to the proportionality argument, Lord Clarke stated that, in this case, the absence of a specified time limit for detention does not infringe the principles in R v Governor of Durham Prison, Ex P Hardial Singh [1984] 1 WLR 704.

Accordingly, the appellant’s pre-decision detention was not unlawful. It further declined to make a preliminary reference to the CJEU.