The Centre for Advice On Individual Rights In Europe v The Secretary of State for the Home Department & Anor

The Claimant is a law centre and registered charity which seeks to promote awareness and enforcement of the EU and ECHR rights of individuals who require its assistance. There is no issue as to its standing in these proceedings. The first Defendant is the Secretary of State for the Home Department, (“SSHD”).The SSHD has responsibility for the enforcement of immigration law and policy. She introduced Operation Nexus, the subject of this challenge, in November 2012. Its implementation is carried out through the Home Office’s Enforcement Directorate and the Metropolitan Police Service in London, (“MPS”), the second Defendant.

All parties have submitted clear and concise written skeleton arguments which informed oral argument and have enabled a distillation of the issues in a judgment that is shorter than might otherwise have been required.

On 21 September 2016 Blake J refused permission on all grounds. The application for permission was renewed and granted after an oral hearing before Dove J on 9 November 2016.

The claim was originally brought on four grounds. Ground 2 which complained of a lack of clear public explanation or public policy and Ground 4 based on discrimination in policing policy and a failure to comply with the public sector equality duty in section 149 of the Equality Act 2010.

Ground 1 asserts that the implementation of Operation Nexus is in breach of Article 14(2) of the Citizens’ Directive and Ground 3 asserts an improper use of police powers to gather information for the purposes of immigration removal.

Operation Nexus has three strands or elements; only the first of these strands is the subject of this challenge:

The Immigration (European Economic Area) Regulations 2006 (SI No. 2006/1003) (“the 2006 Regulations”) generally provide for the right of residence of EEA nationals in the UK and implement the “Citizens’ Directive” 2004/38/EC.

Any arrested person is normally taken to a police station. In all cases, they are asked for basic information under the provisions of the Codes under the Police and Criminal Evidence Act 1984 as to their name, address and date of birth. Code C requires a police officer to enquire about an arrested person’s nationality. Under Operation Nexus, all foreign nationals are asked questions about their personal circumstances relevant to their immigration status. It is the application of this process to citizens of the European Economic Area, (“EEA”), that is challenged. Under Operation Nexus, Custody EEA nationals are further questioned, by an IEO or a police officer, about their personal circumstances and the exercise of their EU treaty rights to reside in the UK.

Citizens of the member states of the EEA have the right to reside in other member states, subject to certain conditions. They can reside in the UK for up to three months without condition provided they are not an unreasonable economic burden on the state. After the initial period of three months they can continue to reside provided they are exercising their treaty rights, namely they are working or otherwise economically self-sufficient or in a family relationship with someone who has a right of residence. An EEA foreign national is subject to the risk of removal if not exercising their treaty rights. Residence in the UK by an EEA national not exercising treaty rights is not a criminal offence.

It is the questioning of EEA nationals in these circumstances which forms the basis for this challenge. The list of questions to be asked under Operation Nexus has been provided by the first Defendant to the second Defendant. Not all questions on the list are asked in every case but in general terms they include requests for information about the date of entry into the UK, employment status, financial means and whether the individual is in a family relationship with another or others who have a right of residence. The purpose of asking these questions does not form any part of the investigation of the alleged criminal offence for which the individual has been arrested. The questions are not asked under the terms of the caution given to persons questioned under the investigation of criminal offences. The questions are asked irrespective of whether the individual is to be charged with any criminal offence.

The completed form is signed by the IEO or police officer and the arrested person. That information is then checked against information on the data base held by the CCU. That check may be determinative or it may not. The decision to take further immigration action is taken by an IEO and not a police officer. If the IEO considers there is reasonable doubt as to whether treaty rights are being exercised s/he may call the individual for an interview and/or to provide evidence under Regulation 20B(2) of the 2006 Regulations.

All states are required to provide equal treatment of their own citizens and other member states’ citizens residing in that state under Article 24(1) of the Citizens’ Directive:

“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 14 of the Citizens’ Directive, which is implemented by Regulation 20B of the 2006 Regulations states:

“1.

Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2.

Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

3.

An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4.

By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a)

the Union citizens are workers or self-employed persons, or

(b)

the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.”

Regulation 20B “Verification of a right of residence” provides:

“(1)

This regulation applies when the Secretary of State—

(a)

has reasonable doubt as to whether a person (“A”) has a right to reside under regulation 14(1) or (2); or

(b)

wants to verify the eligibility of a person (“A”) to apply for documentation issued under Part 3.

(2)

The Secretary of State may invite A to—

(a)

provide evidence to support the existence of a right to reside, or to support an application for documentation under Part 3; or

(b)

attend an interview with the Secretary of State.

(3)

If A purports to be entitled to a right to reside on the basis of a relationship with another person (“B”), the Secretary of State may invite B to—

(a)

provide information about their relationship with A; or

(b)

attend an interview with the Secretary of State.

(4)

If, without good reason, A or B fail to provide the additional information requested or, on at least two occasions, fail to attend an interview if so invited, the Secretary of State may draw any factual inferences about A's entitlement to a right to reside as appear appropriate in the circumstances.

(5)

The Secretary of State may decide following an inference under paragraph (4) that A does not have or ceases to have a right to reside.

(6)

But the Secretary of State must not decide that A does not have or ceases to have a right to reside on the sole basis that A failed to comply with this regulation.

(7)

This regulation may not be invoked systematically.

(8)

In this regulation, “a right to reside” means a right to reside under these Regulations.”

Ground 1 asserts that the implementation of Operation Nexus involves the systematic verification by police officers, and the IEO, of whether arrested EEA nationals are exercising EU treaty rights of residence in the UK, irrespective of whether or not a reasonable doubt has arisen, as required under Regulation 20B(2).

Ground 3 asserts that the questioning of arrested persons under Operation Nexus by police officers is generally unlawful and, in particular, not “for policing purposes” and therefore unlawful.

The Claimant asserts that the practice under Operation Nexus is in breach of Article 14(2) of the Citizens’ Directive. It does not contend that the practice is in breach of Regulation 20B. It alleges that to ask questions of EEA nationals about the exercise of their treaty rights is to seek to verify their status and is therefore a breach of the requirement that there is a reasonable doubt before the verification process and, in any event, asking such questions of all arrested EEA citizens is to act systematically.

The Claimant contends that the ordinary language of Article 14(2) means that there cannot be a verification or checking of the right to reside until and unless there is a reasonable doubt as to its validity. The fact that the questioning is not carried out on a random basis or under an “unspecified discretion” accorded to individual officers is said to mean that it must be systematic.

The first Defendant answers that contention by pointing out that Regulation 20B gives effect to Article 14(2) in a specific way. The right of residence is what is to be verified under Regulation 20B. Verification is the process which takes place after the initial questioning, which may have given rise to a reasonable doubt, has been completed and considered. She argues that the domestic regime under the Regulations must be the focus of the Court’s interpretation and that compliance with Regulation 20B is an answer to the challenge. The Claimant says this point was not properly canvassed in the first Defendant’s written submissions and should not be entertained but it has gone on to deal with the point de bene esse. It would be an unnecessary burden on the tax payer to prolong the proceedings any further. The parties have adequately addressed the point.

Further the SSHD asserts, as a matter of logic, that if no question can be asked to secure information about an individual’s residence in the UK, how can a reasonable doubt about that status ever arise? In the absence of information volunteered by an individual or from another source no EEA citizen’s status could ever be called into question.

The parties cite the judgment of the Court of Justice and the Opinion of Advocate General Cruz Villalon in Case C-308/14 Commission v United Kingdom [2016] 1 WLR 5049 to support the propositions they advance. In that case the issue was the entitlement of EEA citizens to benefits and tax credits whilst resident in the UK:

“[85]  In this context, the Commission, which has the task of proving the existence of the alleged infringement and of providing the Court with the evidence necessary for it to determine whether the infringement is made out (see, in particular, judgment of 23 December 2015 in Commission v Greece, C-180/14, EU:C:2015:840, paragraph 60 and the case-law cited), has not provided evidence or arguments showing that such checking does not satisfy the conditions of proportionality, that it is not appropriate for securing the attainment of the objective of protecting public finances or that it goes beyond what is necessary to attain that objective.

[86] It follows from the foregoing that the fact that, under the national legislation at issue in the present action, for the purpose of granting the social benefits at issue the competent United Kingdom authorities are to require that the residence in their territory of nationals of other Member States who claim such benefits must be lawful does not amount to discrimination prohibited under Article 4 of Regulation No 883/2004.”

The first Defendant contends that the judgment shows that the requirement to provide information about their right of residence in a claim for benefit form is an equivalent requirement imposed on EEA nationals. She argues that it is wider ranging than the requirement in the present case. The Claimant answers by saying that that case is to be distinguished from the instant one. It argues that the information provided was only checked if there was a doubt. This appears to be the crux of the issue between the parties.

In Commission v UK an applicant had to answer certain questions, thereby providing information including about their residence status, for the purposes of claiming a benefit. If the information provided gave rise to concern, then it would be checked. In this case the first Defendant’s argument that the same process is followed in the implementation of Operation Nexus must be the logical and correct interpretation of the factual process. A detained individual is asked questions and, if the answers alone or in combination with other information give rise to a reasonable doubt then that person can be asked for evidence or called to an interview. That does not infringe the requirements of Article 14. The information given by an EEA arrested person in answer to the questions on the list is only checked/verified if there is a doubt about it.

The Claimant further submits that the fact of such questions being asked of all arrested persons from the EEA is systematic. It submits that to avoid a system, the questions should be put on a random basis or at the discretion of a police officer or IEO. The first Defendant contends that the prohibition on systematic verification does not amount to a separate and cumulative limitation in addition to the requirement of a reasonable doubt.

It is clear that routine questioning may give rise to a doubt. Then the doubt, if reasonable, can be further investigated. If that were not the case, then a reasonable doubt could never arise. Absent the manifestation of the doubt the process would be meaningless. The requirement of a reasonable doubt before further investigation, definitively precludes system from the process. The questions may be routine but the checking/verification is not.

It is agreed that the questioning at issue in this case is conducted by police officers and, when available at a hub station, IEOs. The questioning is separate from any investigation of any suspected criminal offence and is not conducted under caution. It appears that the individual may not be told what the purpose of such questioning is and what, if any consequences, may flow from the answers they give. There is no statutory power under which police officers ask such questions.

The second Defendant, MPS, supported by the SSHD, argues that a police officer has the same common law right as an ordinary individual to ask non-coercive questions of another person and such questioning need not be for “policing purposes” to be lawful. Lawful questioning might be that conducted for the purposes of gathering information essential to Immigration Enforcement, and passing on that information to the authorities.

Further or in the alternative, the MPS submits that assisting the SSHD in the discharge of her duties to enforce immigration law and procedure is a “policing purpose” and is therefore lawful in any event.

There has never been a precise definition of the common law powers and duties of a police officer. In Rice v Connolly[1966] 2 QB 414, Lord Parker CJ set out the following principle:

“[I]t is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”

The principle was re-iterated in Steel v Goacher [1983] R.T.R. 98, where the Divisional Court dealt with the question of a police officer’s power to question a person who had not been arrested. Griffiths LJ further held that when it is necessary in order to carry out his duty as a police officer to make enquiries of a member of the public, it was within the lawful execution of that duty to ask questions even if there is no obligation on the member of the public to answer them.

It is axiomatic that police powers, under common law or otherwise, only subsist when exercised lawfully. It follows that a police officer can ask questions which a member of the public, or an IEO, could lawfully ask. In this case an IEO can and often does ask the questions listed of an arrested person. However unlikely it might be, a member of the public, for example a person in the same custody suite, could ask the same questions, even if out of idle curiosity or a desire to make conversation. The questions need not be asked by a police officer qua police officer in order to be asked lawfully.

In any event, the ambit of policing purposes is not confined to the investigation of crime or maintenance of public order and must encompass the power of a police officer to ask questions in order to provide the answers to the SSHD whose functions include the proper enforcement of immigration law. Even if the lawfulness of the posing of a question is determined by the status of the questioner, it cannot be the case that the question is not lawful because the posing of the question is not for a policing purpose.

It follows from the arguments above that the actions of police officers, under Operation Nexus, in posing the questions drafted by the SSHD do not breach Article 14. Domestic law provides that the right of EEA citizens to reside in the UK, subject to the exercise of treaty rights, can be verified if a reasonable doubt has arisen in the course of answering lawfully posed questions. The condition precedent of the reasonable doubt means that the process is not systematic in its operation.

Further the posing of such questions by police officers does not make it unlawful when it would be lawful if done by a member of the public or an IEO. In any event assistance provided to the SSHD to implement and enforce immigration law must be a lawful policing purpose.