R v Secretary of State for the Home Department

This appeal concerns the compatibility with EU law of regulations 21 and 24 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (“EEA Regulations 2006”) and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until 2 January 2013. The regulations were designed to give effect to the Citizens Directive 2004/58/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states (hereinafter “the Directive”).

The appellant appeals, with permission granted by the Supreme Court, against an order of the Court of Appeal (Moore-Bick, Briggs and Christopher Clarke LJJ) of 10 December 2013 [2014] 1 WLR 3313. In a judgment given by Moore-Bick LJ, with whom the other members of the court agreed, the Court of Appeal dismissed the appellant’s appeal against the amended order of Eder J made in the Administrative Court on 24 June 2013. In a judgment handed down on 15 March 2013; [2013] EWHC 567 (Admin), Eder J refused part of the appellant’s claim for judicial review challenging his administrative detention by the respondent (“SSHD”).

The SSHD sought to justify the appellant’s detention under regulations 19 and 24 of the EEA Regulations 2006 (as amended), which provide, so far as material, as follows:

In the agreed statement of facts and issues the parties agreed that the appeal raises the following issues. (1) Does the detention power under regulation 24(1) of the EEA Regulations 2006 discriminate without lawful justification against EEA nationals and their family members? (2) Is the power in regulation 24(1) to detain before the making of a decision to deport disproportionate? (3) In particular, does the absence of a time limit render such detention unlawful under EU law? (4) Does regulation 24(1) unlawfully restrict the rights of EEA nationals and their family members by contrast to those enjoyed before the coming into force of the Citizens Directive which the EEA Regulations 2006 purport to implement? (5) Do regulations 21 and 24 of the EEA Regulations 2006 fail accurately to transpose the safeguards of articles 27 and/or 28 of the Citizens Directive? (6) Were the appellant’s administrative detention from 3 April until 6 June 2012 and the bail restrictions imposed upon him until 2 January 2013 unlawful by reason of the matters raised in questions (1) to (5) above?

The facts are not in dispute and can largely be taken from the agreed statement of facts and issues. The appellant is an Algerian national born on 21 August 1968 who arrived in the United Kingdom in March 1996, gaining entry using a false French identity card. On 4 March 1996 he applied for asylum, which was refused. He appealed. On 25 February 1997 he married a French national who was a worker in the UK and on 5 February 1998 he was granted a five year residence permit as the family member of an EEA national. The permit was renewed until 14 April 2004. The appellant and his wife had two children who were born on 30 June 1997 and 23 October 1998 respectively. He withdrew his asylum appeal on 9 February 1999. In or about 2001, the appellant’s wife became depressed with psychotic symptoms and became involuntarily unemployed. The appellant, who worked as a barber, began abusing alcohol, heroin and crack cocaine. The two children were taken into care. The couple became estranged before the birth of their third child in July 2004. The appellant’s wife returned to France with the youngest child in late 2005. The two older children were transferred to care in France by an order of the Family Court dated 31 January 2006.

The appellant acquired a right of permanent residence in the UK under EU law. Article 16(2) of the Directive establishes a right of permanent residence for family members legally residing with an EEA national in a host member state for a continuous period of five years. That entitlement was transposed in regulation 15(1)(b) of the EEA Regulations 2006. The appellant had fulfilled that condition by 5 February 2003.

By the end of January 2012, the appellant had been subject to 28 criminal convictions for 48 offences. His longest custodial sentence was imposed in 2008 when he was sentenced to 23 months’ imprisonment for three offences of theft, possession of controlled drugs and affray and possession of a bladed article. His other custodial sentences have been imposed for acquisitive offences (theft and handling stolen goods) and offences of personal drug possession, namely possession of a class A drug (crack cocaine) and possession of a Class B drug (cannabis resin). He also received non-custodial sentences for motor vehicle offences, failure to surrender to bail, failure to comply with community punishments, being drunk and disorderly and further acquisitive and drug possession offences. A full list of the appellant’s convictions until and including the index offence (which gave rise to the period of detention under challenge) was agreed between the parties as an addendum to the agreed facts and issues. The list is attached to this judgment.

It can be seen that the appellant was guilty of a series of offences. The First-tier Tribunal, Immigration and Asylum Chamber (“the FtT-IAC”) subsequently described his offending in this way:

On 8 January 2007 the SSHD made the decision to deport the appellant in the light of his convictions to date. He appealed against that decision. On 23 July 2007, the Asylum and Immigration Tribunal (“AIT”) found that the appellant had established a right of permanent residence in the UK under EU law and allowed the appellant’s appeal on EU law grounds but applied the incorrect legal test. The matter was remitted and on 3 November 2008 the AIT again found that the appellant had acquired a right of permanent residence in the United Kingdom and again allowed his appeal. It held that the “serious grounds of public policy or public security” threshold for expulsion of permanent residents in article 28(2) of the Directive and regulation 21(3) of the EEA Regulations 2006 was not met. The SSHD was granted permission by the AIT to appeal to the Court of Appeal but withdrew her appeal by a consent order sealed on 11 April 2012.

As the addendum shows, the appellant continued to offend after the AIT allowed his appeal on 3 November 2008. On 25 January 2012, the appellant was convicted of theft for which he was sentenced to a further term of 20 weeks’ imprisonment, with a release date of 3 April 2012. This conviction gave rise to further deportation proceedings against the appellant and to the administrative detention under challenge in this appeal. While the appellant was serving his custodial sentence, on 27 March 2012 the SSHD issued internally a notice purporting to authorise the appellant’s detention under Schedule 3 of the Immigration Act 1971. The detention authority stated (it is agreed erroneously) that the SSHD had decided to make a deportation order against the appellant under section 5(1) of the Immigration Act 1971.

On 3 April 2012, the appellant completed his criminal custodial term but (as stated above) was administratively detained. On the same date, he was served with three documents from the UK Border Agency. The first document, dated 29 March 2012, was a letter which invited the appellant to make representations as to why he should not be deported and stated that he had 20 working days to respond. The second, dated 3 April 2012, was a notice of “Decision to make a Deportation Order” under the EEA Regulations 2006. The decision was said to be made on 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 but gave no other reasons. The third document was a letter dated 29 March 2012 which informed the appellant that he was being detained under Schedule 3 of the Immigration Act 1971 pending his removal. The reasons for detention letter made no reference to the Directive or the EEA Regulations 2006.

On 12 April 2012 the appellant’s solicitors sent a pre-action protocol letter stating that the decision to deport was procedurally unfair since it had been made before the appellant had time to make representations and was in breach of the mandatory safeguards contained in regulation 21(6) of the EEA Regulations, which required the SSHD to take specific considerations into account before making a “relevant decision”. The letter also drew the SSHD’s attention to the earlier findings of the AIT that the appellant’s deportation would be in breach of EU law. A reply on behalf of the SSHD dated 13 April 2012 said that the SSHD considered that the appellant posed a risk of harm to the general public and that his deportation was proportionate and justified. On 20 April 2012, the SSHD provided reasons for deportation which acknowledged that the appellant had acquired a right of permanent residence in the UK and could only be deported on serious grounds of public policy or public security but asserted that this threshold was met. The letter set out an account of the appellant’s offending and an assessment of the threat posed by him.

On 11 May 2012, in her acknowledgment of service in these proceedings the SSHD withdrew her decision to deport the appellant dated 3 April 2012 and stated that she would “notify the [appellant] of any decision to deport following consideration of any representations received”. The letter further said that “the [appellant]’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)” so that in her view the appellant’s detention remained lawful.

There have been two relevant periods when the appellant was on bail. The appellant was first granted bail on 31 May 2012 by the FtT-IAC subject to a reporting restriction and an electronic curfew and was released from detention on 6 June 2012. It was subsequently conceded by the SSHD in these proceedings that the appellant’s detention from 3 April 2012 until 6 September 2012 was to be regarded as pursuant to regulation 24(1) of the EEA Regulations 2006, since there had been no valid decision to deport him in that period. As to the second period of bail, on 7 September 2012 the SSHD issued a further decision to deport him under the EEA Regulations 2006. That decision was accompanied by reasons and referred to the factors listed in regulation 21(6) of the EEA Regulations 2006 (quoted below). The SSHD again acknowledged that the appellant had acquired a right of permanent residence in the UK. The appellant’s appeal against the decision of 7 September 2012 was allowed by the IAT in a determination promulgated on 2 January 2013 on the ground that, as a permanent resident, his deportation would breach EU law since the threshold for the expulsion of a permanent resident was not met. The SSHD did not seek to challenge that decision.

On 27 April 2012 the appellant issued the claim for judicial review which gives rise to this appeal. On 16 May 2012, the appellant was granted limited permission on the papers to apply for judicial review by James Dingemans QC, sitting as a Deputy High Court Judge. The appellant sought permission to enlarge his grounds and the matter was dealt with at a rolled-up hearing before Eder J (“the judge”) on 6 and 7 March 2013. He recorded two concessions made on behalf of the SSHD. The first was that the decision to deport the appellant dated 3 April 2012 was to be regarded as null and void ab initio at least so far as it constituted a decision or notice to remove or deport. It followed that it was common ground that the appellant was in effect to be regarded as having been detained from 3 April 2012, not pursuant to regulation 24(3) of the EEA Regulations 2006 but rather pursuant to regulation 24(1). The second related to the second period of bail after the second decision to deport, which was on 7 September 2012. The judge said at para 15 of his judgment that, at least until 2 January 2013, the appellant was to be regarded as “detained on bail” under regulation 24(3). I note in passing that it is not accepted on behalf of the SSHD that the expression “detained on bail” was used on her behalf.

It was also accepted by the appellant’s then counsel that he could not, and did not, challenge the detention decisions on grounds of Wednesbury unreasonableness or irrationality: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn[1948] 1 KB 223. Nor did the appellant’s counsel below seek to argue that the Secretary of State had acted contrary to the principle of proportionality. Moreover, it was agreed at the hearing before the judge that questions concerning the lawfulness of any remaining restrictions on the appellant’s liberty after 2 January 2013 should be adjourned with liberty to apply. For present purposes the issues are accordingly limited to the detention of the appellant for about two months from 3 April to 6 June 2012 and the restraint upon his liberty while on bail for just under seven months until 2 January 2013.

As stated above, the application for judicial review failed before the judge and the Court of Appeal dismissed his appeal. One of the ironies of this appeal is that the Court of Appeal dismissed some of the appellant’s submissions on the basis that they had not been raised at first instance, whereas the appellant, who has the benefit of fresh counsel, now raises a number of issues which were not before the Court of Appeal. However, he does so without objection on behalf of the SSHD. The court will accordingly consider the particular questions raised by the parties and set out in para 4 above. Before doing so, it is appropriate to set out the relevant legal framework.

A striking feature of the appellant’s case is that it does not for the most part focus on his particular circumstances. It is put at the highest level of abstraction. The appellant contends that the impugned legislation is invalid and must be disapplied in each and every case and in all circumstances. The critical provisions are regulation 24(1) and (3) of the EEA Regulations 2006, which must of course be construed in their context.

The legal framework is not in dispute. There are UK immigration controls relating to (a) entry, (b) restrictions on removal and (c) detention, although this appeal is directly concerned only with detention. At each point there are important differences between the rules which apply to those exercising rights of free movement derived from laws applying to the European Economic Area, which I will call EU law rights, namely EEA nationals and their family members, and those who are not exercising such rights.

As to controls on entry, for a non-British citizen not exercising EU law rights, the regime which confers leave to enter and remain in the United Kingdom is governed by the Immigration Act 1971. By section 3(1) of that Act, people who are not British citizens and do not fall within defined exceptions are not permitted to enter the UK other than with specific permission, or leave, to do so. Leave to remain may be granted for either indefinite or limited periods and may be subject to conditions, such as (amongst other things) restrictions on employment. These rules are subject to specific exceptions, although the general position is that a form of permission is required to enter and remain in the UK. Those who require leave to enter or remain in the UK are “subject to immigration control”. The process of the granting of leave to enter or remain to those subject to immigration control involves consideration of whether the presence of the individual in question would be conducive to the public good. Those with previous criminal convictions, or in relation to whom there are other grounds to conclude that their presence will not be conducive to the public good, may be subject to immigration controls preventing their entry.

By contrast, those exercising EU law rights are not subject to the above regime. They enjoy extensive additional rights, no doubt as a means of promoting the internal market, including the market for labour, as given effect in UK law. By section 7(1) of the Immigration Act 1988, people with directly effective EU rights to enter or remain in the UK, or who enjoy such rights by virtue of any provision made under section 2(2) of the European Communities Act 1972, do not require leave to enter or remain.

Critical to the construction of the EEA Regulations 2006, including of course regulation 24(1), is the true meaning and effect of the Directive, which consolidates and extends the rights granted by pre-existing secondary legislation and reflects established CJEU case-law. Further, it applies to all of the countries in the EEA.

It appears to me that the recitals are of some assistance.Moore-Bick LJ drew attention (at para 6) to the following recitals:

Article 1 explains that the Directive lays down the conditions governing the exercise of the right of free movement and residence by Union citizens and their family members, the right of permanent residence and the limits placed on the rights set out above, on grounds of public policy, public security or public health. Article 2 defines “Union citizen” as any person having the nationality of a member state, and defines “family member” to include a spouse. Article 3 makes clear that the beneficiaries of the Directive are “Union citizens who move to or reside in a member state other than that of which they are a national, and to their family members”. Accordingly, it does not apply to a “wholly internal situation”, which arises where an EU national has not moved between member states.

The class of persons who are able to exercise EU law rights extends not only to nationals of EEA member states who exercise rights of free movement, but also to certain “third country” family members who are nationals of non-EEA states. The residence rights conferred by EU law on third country family members are nevertheless personal rights. Article 13 of the Directive makes clear that rights of residence of a spouse may survive divorce in certain circumstances.

In short, so far as leave to enter and remain are concerned, those exercising EU rights have much greater rights than those not exercising such rights but are subject to immigration control. The same is true so far as restrictions on removal and deportation are concerned. For example, a person subject to immigration control who has leave to remain may be liable to deportation or removal under a number of statutory provisions, namely sections 3(5)(a), 3(5)(b) and 3(6) of the Immigration Act 1971 and section 32 of the UK Borders Act 2007. There are differences between deportation and removal but it is not necessary to discuss those differences here.

A person who is not a British citizen (and not exercising EU law rights) is liable to deportation under the Immigration Act 1971 where (a) the SSHD determines that his or her deportation is conducive to the public good: section 3(5)(a); or (b) another person to whose family he belongs is or has been ordered to be deported: section 3(5)(b); or (c) after attaining the age of 17 he has been convicted of an offence punishable by imprisonment and on his conviction the judge recommended deportation: section 3(6). The power to make deportation orders is contained in section 5 of the 1971 Act.

In addition to those powers of deportation, the UK Borders Act 2007 introduced automatic deportation for certain “foreign criminals”. Section 32(5) of that Act provides that the Secretary of State “must make a deportation order in respect of a foreign criminal”. The regime of automatic deportation is, however, subject to certain exceptions set out in section 33 of the 2007 Act including, inter alia, where removal of the foreign criminal would breach that person’s rights under EU Treaties (section 33(4)) and where deportation would breach a person’s Convention rights or the UK’s obligations under the Refugee Convention (section 33(2)).

I turn to detention pending a decision whether or not to deport. In summary, it is a familiar feature of the system of immigration controls that the power of detention can be used in a variety of situations prior to the making of a decision to deport or remove. These include the following: (1) the 1971 Act, Schedule 2, paragraph 16(2), where there are reasonable grounds to suspect a person is someone in respect of whom removal directions may be given, including inter alia under section 10 of the Immigration and Asylum Act 1999; (2) the 1971 Act, Schedule 3, paragraph 2, pending the making of a deportation order following a court recommendation; (3) under the 2007 Act, detention pending a decision as to whether a person is liable to automatic removal; and (4) under regulation 24(1) of the EEA Regulations 2006.

It is correctly accepted on behalf of the SSHD that, in contrast to the position described above, those exercising EU rights do not require leave to enter or remain and have the benefit of powerful protections against their expulsion from the UK. The ability of member states to restrict the Treaty rights described above is limited by Chapter VI of the Directive, which is entitled

It is clear that EEA residents who fall within the scope of the Directive enjoy powerful rights of residence far beyond those afforded by domestic law. As appears above, the Directive applies three different escalating threshold tests for restriction on rights of free movement as follows. In the case of a person such as the appellant with the right of permanent residence, an expulsion decision must be based on “serious grounds of public policy or public security”: article 28(2). Article 24, which is entitled “Equal Treatment”, provides so far as relevant:

As already noted the Directive has been implemented into domestic law by the EEA Regulations 2006. The Regulations extend to the EEA rather than just the EU because the Directive applies throughout the EEA. They include the following. Regulation 2 contains definitions, including the definition of “EEA decision” as meaning “a decision under these Regulations that concerns - (a) a person’s entitlement to be admitted to the United Kingdom … (c) a person’s removal from the United Kingdom”. Regulation 7(1)(a) provides that a “spouse or his civil partner” shall be treated as a “family member”. Regulations 11 to 15B provide for rights of admission and residence which implement the relevant provisions of the Directive.

As noted in para 3 above, regulation 19(3)(b) provides for the removal of an EEA national or the family member of an EEA national where

Regulation 21 is designed to give effect to articles 27 and 28 of the Directive. It applies to “relevant decisions”, meaning “an EEA decision taken on the grounds of public policy, public security or public health.” It provides that such a decision to remove inter alia “(2) … may not be taken to serve economic ends”, and “(3) … may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security”.

Regulations 21(5) and (6) provide:

In summary, an EEA national who has entered the United Kingdom or the family member of such a national, exercising free movement rights, may be removed if certain limited circumstances apply, and under circumscribed conditions. Broadly, removal may only occur where:

There are grounds of public policy, public security or public health: article 27(1) of the Directive and regulation 19(3)(b). In the case of a person with a permanent right to reside under regulation 15, there must be serious grounds of public policy or public security: article 28(2) and regulation 21(3). If the EEA national has resided in the United Kingdom for a continuous period of at least ten years there must be imperative grounds of public security: article 28(3)(a) and regulation 21(4)(a). For an EEA national under 18 there must be imperative grounds of public security and expulsion must be necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child: article 28(3)(b) and regulation 21(4)(b).

But a decision to remove taken on public policy or public security grounds must also be a proportionate response and taken exclusively on the basis of the individual’s personal conduct, which must itself represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. It cannot be based on matters isolated from the case, considerations of general prevention or prior convictions (see, generally, article 27(2) and regulation 21(5)(a-e)).

Decisions on grounds of public policy or public security further require consideration of a set of specific factors, including age, state of health, family and economic situation, length of residence and social and cultural integration in the UK and links to the country of origin: article 28 and regulation 21(6).

It is to be noted that, as originally drafted, regulation 24(1) referred to regulation 19(3) without the restriction to paragraph (b) of that provision. The regulation was amended with effect from 16 July 2012 to its present form which refers only to cases in which regulation 19(3)(b) is satisfied. Although that change took place during the period of detention with which the appeal is concerned, it is not suggested that it is material to any of the issues in the appeal.

The agreed issues are set out at para 4 above. Although there is considerable overlap between some of them, it seems to me to be sensible to consider them separately.

Before the Court of Appeal it was argued that this question should be answered in the affirmative on the basis that the power under regulation 24(1) to detain is contrary to article 18 of the TFEU, which provides:

Both the judge and the Court of Appeal rejected this submission. The Court of Appeal put it thus in para 28:

It was correctly conceded on behalf of the appellant that the Court of Appeal was right to hold that 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 nationals. This can be seen in the decision of the CJEU in Vatsouras and Koupstantze v Arbeitsgemeinschaft (AGRE) Nürnberg (Joined Cases C-22/08 and C-23/08) [2009] ECR I-4585, where two Greek nationals complained that they were not permitted access to certain social assistance benefits which were granted to illegal immigrants. The CJEU explained that the referring Court was essentially asking whether article 12 EC [now article 18 TFEU] precluded national rules which excluded nationals of member states from receipt of social assistance benefits in cases where those benefits were granted to nationals of non-member states.

The court rejected the complaint in these terms:

As observed in argument on behalf of the SSHD, in Vatsouras, Advocate General Ruiz-Jarabo Colomer formulated the same point at a higher level of abstraction:

Further, in Martinez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691, para 62, the CJEU said:

Such “discrimination” is simply a function of the limited scope of the EU legal order. It is not legitimate to draw a comparison between those exercising EU rights and other third country nationals for the purposes of EU discrimination law. Thus, in R (Bhavyesh) v Secretary of State for the Home Department [2012] EWHC 2789 (Admin) Blake J held at para 27 that

It is submitted on behalf of the SSHD that this analysis is fatal to the appellant’s discrimination case. I agree. It follows to my mind that the other points made on behalf of the appellant under this head do not assist his case. They all fall foul of the principle in Vatsouras that those concerned are subject to a different legal order. It may be noted that the European Court of Human Rights has approached the problem in a similar way. In Moustaquim v Belgium (1991) 13 EHRR 802 the claimant was a Moroccan national who had resided in Belgium for most of his life. On committing criminal offences the Belgian government decided to deport him to Morocco. He claimed that he was the victim of discrimination on grounds of nationality (contrary to article 14 taken together with article 8 ECHR) because two categories of persons could not be deported in the same circumstances: those with Belgian nationality and those who were citizens of another member state of the European Community. The ECtHR rejected this challenge. Paragraph 49 included the following:

See also, to the same effect, Ponomaryov v Bulgaria (2011) 59 EHRR 20, where the applicants complained they were required to pay school fees as a result of their Kazakh nationality and immigration status. At para 54 the ECtHR said:

It was submitted on behalf of the SSHD that it is artificial to isolate regulation 24(1) and complain as to the lack of precisely analogous powers under the non-EEA regime. That submission was accepted by both the judge and the Court of Appeal. The judge held at para 52 that whilst there was

As to this part of the appellant’s argument, Moore-Bick LJ said at the end of para 28 that article 18 TFEU is not concerned with the way in which member states treat nationals of other countries who reside in their territories. He added at para 29:

In this court Mr Saini QC for the appellant has put his case rather differently. He argues that two forms of discrimination arise which require justification, and to which the Vatsouras principle has no application. The first is discrimination between EU nationals or their spouses and third country nationals, on grounds of their status as beneficiaries of the Directive, contrary to article 21(1) of the EU Charter of Fundamental Rights. The second is discrimination on grounds of nationality, contrary to article 18 TFEU, between British nationals and EU nationals, both of whom have third country spouses.

The first argument in my view adds nothing to the discussion under TFEU article 18. Article 21 of the Charter cannot be relied on to extend the rights otherwise provided under European law. As the CJEU said in NS v Secretary of State (Case C-411/10) at para 119:

The second argument appears to be new. The following comparison is relied on:

A French woman exercising Treaty rights in the UK is married to an Algerian man. Her husband is sentenced to less than 12 months imprisonment for a criminal offence. Her husband is liable to be detained under regulation 24(1).

A British woman resident in the UK is married to an Algerian man. Her husband is sentenced to less than 12 months imprisonment for a criminal offence. Her husband is not liable to be detained before a decision to deport.

At first sight this comparison does not appear to assist an argument that the appellant has been discriminated against in the enjoyment of his EEA law rights. In each limb of the comparator the situation of the third country national is the same. The argument is that the spouse of the third country national has been the subject of discrimination. But here the appellant’s wife has not brought a claim and is not before the court. As stated in para 5 above, she returned to France in late 2005 with her third child and the two older children joined her in 2006. So the couple have been separated for ten years. There is nothing to suggest that she has suffered any discrimination because of the appellant’s detention.

However, Mr Saini submits that, contrary to the requirement to treat an EU national equally to a British national, the French wife exercising Treaty rights has been adversely affected. Her husband was liable to be detained, whereas the British wife’s husband was not. When considering whether regulation 24(1) is discriminatory, it is legitimate to consider the EU spouse, regardless of whether she has brought a claim herself. This is because any adverse effects on third country spouses interfere with the EU national’s own free movement rights.

Mr Saini supports his argument by reference to the decision of the CJEU in R v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department (Case C-370/90) [1992] 3 All ER 798. Mr Singh was the Indian husband of a British woman. They had married in the UK in 1982, and lived in Germany from 1983-1985 where they were employed. They returned to the UK to open a business in 1985. A decree nisi of divorce was pronounced in 1987. Mr Singh remained in the UK without leave from 1988. A deportation order was made against Mr Singh, which he appealed, asserting a Community law right to reside in the UK. The decree absolute was pronounced in 1989.

The court held that the fact that the marriage was dissolved by the decree absolute was irrelevant to the issue raised by the question before the court which concerned the basis of his right of residence in the period before the decree (para 12). Mr Saini relies in particular on the following passage of the judgment, at para 19:

Thus, submits Mr Saini, Mr Singh was able to rely on the fact that the free-movement rights of his EEA spouse might be affected hypothetically by restrictions placed on his own movements, and to continue to do so even after any connection had ceased.

It is unfortunate that this authority, described by Mr Saini as “seminal”, was not referred to in the courts below or even in his own 50 page case for this appeal. It seems to have emerged for the first time in a note accompanying a set of supplementary authorities submitted shortly before the hearing. For this reason, no doubt, it was not addressed in the respondent’s case, or in any detail in oral argument. Had it been necessary to reach a conclusion on the scope and implications of that decision, the court might have required further submissions including submissions on the possibility of a reference.

However, I am satisfied that the decision has no direct bearing on this case. In the first place, the court made clear that its reasoning was addressed to Mr Singh’s position before the divorce was finalised. It seems doubtful that it was intended to apply to a case where, as here, any practical link between the spouses came to an end eight years before the relevant actions of the Secretary of State. Any effect on the rights of Mr Nouazli’s spouse would surely be truly hypothetical because she was unlikely ever to exercise her rights and thus unlikely ever to be deterred from exercising them. It is important in any event to bear in mind that we are concerned not with the removal of the appellant, but merely with his temporary detention or subjection to bail conditions for a few months, first pending a decision by the Secretary of State, and then pending his successful appeal. Whether in other circumstances any relevant discrimination might arise as a result of mere detention pending a decision to remove will also be a fact sensitive matter. It cannot be a reason for holding, as Mr Saini would submit, that regulation 24(1) is invalid in “each and every case”. At most, such a claim could justify the disapplication of the offending measure in a particular case.

On the facts of the present case I can see no conceivable basis for holding that any actual or hypothetical rights of the appellant’s former spouse have been affected by the appellant’s detention for a few months in 2012, still less by the imposition of bail conditions.

In the light of these conclusions it is not necessary to consider whether regulation 24(1) can be objectively justified. I would answer the question raised by issue (1) in para 4 above, by holding that regulation 24(1) does not discriminate without lawful justification against EEA nationals and their family members.

So far as I am aware it is not in dispute that regulation 24(1) must be applied proportionately. In these circumstances, so long as it is so applied, I do not see how it can be said that the regulation is itself disproportionate. It is not said in this appeal that it was applied disproportionately on the facts. This question must therefore be answered in the negative, subject to the answer to question (3).

It is submitted on behalf of the appellant that this question should be answered in the affirmative. In particular it is submitted that it is inconsistent with the general EU law provisions of legal certainty and proportionality to permit executive detention of those exercising free movement rights when such incarceration is subject neither to specified time limits nor to initial or further mandatory judicial oversight. It is submitted that the ECtHR has found mandatory detention time limits to be a necessary component of the quality of “law” for the purposes of justifying deprivation of liberty under article 5(1)(f) ECHR, which provides:

The SSHD relies upon the well-known principles originally propounded by Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, Dyson LJ noted at para 46 that the principles were approved by Lord Browne-Wilkinson in the House of Lords in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 111A-D. Dyson LJ identified the following four principles as emerging from Hardial Singh:

Those principles have been applied by the courts on many occasions. I would accept the submission made on behalf of the SSHD that they were intended to impose limitations on the powers of immigration detention: R (Francis) v Secretary of State for the Home Department [2015] 1 WLR 567, para 45. The principles have been applied to the following: mandatory detention pending deportation: Francis; detention pending administrative removal: R (FM) v Secretary of State for the Home Department [2011] EWCA Civ 807, para 25; detention pending examination of immigration status: R (Saadi) v Secretary of State for the Home Department [2002] 1 WLR 3131, para 26; and detention pending a decision on whether one of the exceptions to automatic deportation applies: R (Rashid Hussein) v Secretary of State for the Home Department [2009] EWHC 2492 (Admin), para 44 and R (Saleh (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 1378, para 16.

It is clear that the approach taken in Hardial Singh requires both the SSHD and the courts to take a fact sensitive approach to the length of detention. Thus in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, paras 37-41, Lord Thomas CJ deprecated the use of “tariffs or yardsticks”. He said between paras 37 and 41:

The courts have recognised that there are sound policy reasons for a flexible and fact-sensitive approach. I find nothing in the judgments of the ECtHR which undermines the Hardial Singh approach to the duration of detention. In this regard our attention was drawn to R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, para 94, where Lord Kerr observed that Hardial Singh principles are “more favourable to detainees than Strasbourg requires.”

We were also referred to the leading case of Chahal v United Kingdom (1996) 23 EHRR 413, where the Grand Chamber considered a lengthy period of detention prior to deportation. The court said at para 113:

The court in Chahal held that article 5(1)(f) was satisfied on the facts. It did not suggest that the lack of a specified time limit rendered the detention unlawful. The Grand Chamber revisited Chahal in Saadi v United Kingdom (2008) 47 EHRR 17 and made an explicit link between the notion of arbitrariness and the duration of detention (para 74):

I would accept the submission that the principles set out in Chahal and Saadi contain a specific application of the relevant rules in the context of the legality of detention. Nothing in the broad dicta in the CJEU cases referred to on behalf of the appellant demonstrates a narrower approach in EU law.

Hardial Singh was considered by the ECtHR in Tabassum v United Kingdom (Application No 2134/10) decision on admissibility, 24 January 2012), where the applicant complained of unlawful detention pending deportation. The ECtHR expressly considered the formulation of the Hardial Singh principles in R (WL (Congo)) and concluded at para 23 that the applicant’s period of detention “did not exceed what was reasonable in all the circumstances of the case and was not arbitrary”. None of the cases cited on behalf of the appellant in his case to support his contention that mandatory time limits are a “necessary” component of the “quality of law”. They all turn on very different facts. See, for example Ismoilov v Russia (2008) 49 EHRR 42 and Muminov v Russia (2008) 52 EHRR 23. In Ismoilov the ECtHR criticised the Russian system under review and concluded at para 140 that:

This is not to say that the absence of time limits is not a relevant factor in deciding in a particular case. This is shown in a number of cases to which we were referred. See, for example six cases against Turkey, namely Abdolkhani and Karimnia v Turkey (Application No 30471/08) (unreported) given 22 September 2009, para 135, applied in ZNS v Turkey (Application No 21896/08) (unreported) given 19 January 2010, para 56; Tehrani v Turkey (Application Nos 32940/08, 41626/08 and 43616/08) (unreported) given 13 April 2010, para 70; Charahili v Turkey (Application No 46605/07) (unreported) given 13 April 2010, para 66; Alipour and Hosseinzadgan v Turkey (Application Nos 6909/08, 12792/08 and 28960/08) (unreported) given 13 July 2010, para 57; and Dbouba v Turkey (Application No 15916/09) (unreported) given 13 July 2010, para 50. In those cases the ECtHR treated the absence of a time limit as a relevant factor in reaching the same conclusion as in Ismoilov quoted in para 71 above, in almost identical terms. In Abdolkhani,at para 135, the ECtHR said, in the context of detention pending deportation concluded:

See also Mathloom v Greece (Application No 48883/07) (unreported) given 24 April 2012 and Massoud v Malta (Application No 24340/08) (unreported) given 27 July 2010to much the same effect. Again, the absence of a time limit was treated as a relevant factor but no more. In each case the ECtHR focused on the importance of having a procedure capable of avoiding the risk of arbitrary detention.

In my judgment in the instant case there is in place a clear statutory framework which involves appropriate judicial scrutiny and the consideration of the guidelines referred to above. In short, each case depends upon its particular facts. I would endorse the approach identified by Lord Thomas CJ and quoted in para 66 above:

Nor can I accept the five reasons given on behalf of the appellant as to why the Hardial Singh approach is unlawful. They are these. First, it is said that this approach “fails to address the fundamental legality” test of reasonable foreseeability. For my part, I would reject the argument based on reasonable foreseeability. As explained above, the principles in Chahal are an application of the legality principle in the context of the legality of detention. Secondly, it is said that Hardial Singh is not satisfied because detention under regulation 24(1) does not comply with the requirement that detention “must be for the purpose of facilitating the deportation”. As I see it, facilitating the deportation is precisely the purpose of regulation 24(1) detention, even if no final decision has been made. Thirdly, it is said that the principles in Hardial Singh only apply ex post facto. In my view that is wrong. What is required is proper scrutiny of all the facts: see paras 64 and 70 above. The court is able to ensure that Hardial Singh is adhered to, but the primary responsibility to comply lies with the SSHD. The courts provide supervision of the application of these criteria and in practice, challenges are brought to secure release, not just damages after the event.

Fourthly, it is said that a lack of legal certainty may amount to a restriction on free movement. The authority cited for this proposition is a tax case, namely Safir v Skattemyndigheten i Dalarnas Län (Case C-118/96)[1999] QB 451, which was not concerned with detention. I would accept the submission made on behalf of the SSHD that it gives no reason to suppose that EU law requires more in this particular context than the ECHR.

Fifthly, the appellant argues that it is no answer to lack of legal certainty that the national courts interpret the measures compatibly with EU law. That is not the case for the SSHD, which is that the Hardial Singh limitations form part of what has been accepted by European courts as meeting the requirements imposed by law.

For all these reasons I would reject the case for the appellant and in answer to the question posed by issue (3), would hold that the absence of a time limit does not, as a matter of principle, render such detention unlawful under EU law.

I would answer this question in the negative, essentially for the reasons given in the answer proposed to issue (1).

The essential point made on behalf of the appellant is that the Directive has not been properly transposed into the EEA Regulations 2006 because regulation 24 fails to transpose the safeguards contained in articles 27 and 28 of the Directive. It is said that decisions taken under regulation 24(1) are not “EEA decisions” for the purposes of regulation 2 of the Regulations, which is the definition section. It provides:

In my view there is a short answer to this point. The power to detain under regulation 24 is not free-standing, but is purely ancillary to the powers of removal in the circumstances permitted by regulation 21, which properly transposes articles 27 and 28. Where the Secretary of State has reason to believe that there is a case for removal under those provisions, it is clearly appropriate that she should have power to detain while the matter is being considered, and thereafter pending deportation, if otherwise there might be a risk of the subject absconding. The creation of such a power is well within the margin of appreciation given to the national authorities under the Directive, provided it is suitable and proportionate to its purpose and reasonably exercised (see for example R (Lumsdon) v Legal Services Board [2015] 3 WLR 121, para 55). It is not necessary to show that a decision under regulation 24 is itself an “EEA decision” within the meaning of article 2. It is enough that it is directly linked to regulation 19(3)(b) which in turn is made expressly subject to regulation, and hence to requirements equivalent to those in the Directive. Moreover, I can see no basis for concluding the regulations themselves are disproportionate and it is not said that the impugned decisions were arbitrary or disproportionate on the facts.

Both the judge and the Court of Appeal rejected the submission, albeit on somewhat different grounds. The submission advanced on behalf of the SSHD is shortly this. Regulation 24(1) provides:

In these circumstances, I would accept the submission made on behalf of the SSHD that regulation 21 implements the requirements of articles 27 and 28 of the Citizens Directive. It appears to me to follow from the above that regulation 24(1) gives an express power to detain a person who may be removed under regulation 19(3)(b), which contains essentially the same criteria as articles 27 and 28 of the Directive. It seems to me therefore that a person who is so detained can fairly be said to be detained pursuant to a decision which “concerns … a person’s removal” within the meaning of sub-paragraph 2(c) of the EEA Regulation 2006 in the definition of an “EEA decision”.

For these reasons I would answer the question posed by issue 5 in the negative. Regulations 21 and 24 of the EEA Regulations 2006 do not fail accurately to transpose the safeguards of articles 27 and/or 28 of the Directive.

It follows from the above that the answer must be no. The appellant’s detention was not unlawful for the reasons suggested.

The remaining question is whether the court should refer any of the questions discussed above to the CJEU for a preliminary reference. I am not persuaded that the Supreme Court should do. In so far as the questions raise issues of EU law, the principles adopted seem to me to be acte clair.

For the reasons given above I would dismiss the appeal.

After preparing a draft judgment in the form set out above (as agreed by the other members of the court) we received a detailed note containing submissions on behalf of the appellant relying upon a decision of the Grand Chamber of the CJEU in JN v Staatssecretaris van Veiligheid en Justitie (Case C-601/15 PPU), in which judgment was handed down on 15 February 2016.

It was submitted that, where in the implementation of EU law, a member state authorises administrative detention prior to expulsion and seeks to justify it on public order grounds, first, the member state must previously have formed a concluded view as to the threat posed to public order by the individual and must have balanced that against the interference with liberty:

Reliance was placed on the right to liberty in article 6 of the EU Charter of Fundamental Rights and upon article 52 of the Charter, which provides that “limitations may be made only if they are necessary”. See paras 49-50 in JN. It is submitted that article 52(3) of the Charter and article 5(1)(f) of the ECHR do not preclude article 6 of the Charter from proposing a necessity test in detention for expulsion for the reasons given in paras 47 and 48. Thus, it is submitted, a legislative measure authorising administrative detention must be “necessary in order to attain the legitimate objectives pursued by the legislation in question, since the disadvantages caused by the legislation must not be disproportionate to the aims pursued”: see para 54. It is stressed that, in view of the importance of the right to liberty, limitations on the exercise of the right must apply only in so far as they are strictly necessary. See para 56, where reliance is also placed upon para 52 of the judgment in the Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Joined cases C-293/12 and C-594/12).

Reliance is further placed upon article 8(3) of Directive 2013/33/EU, which lays down standards for the reception of applicants for international protection. It is said that article 8(3)(e) is the analogue, in the asylum context, of article 27 of the Citizens Directive. Indeed, it is submitted that the Citizens Directive is a fortiori to Directive 2013/33/EU. In all the circumstances it is submitted that the EEA Regulations incorrectly transposed the safeguards of article 27 of the Citizens Directive and that the test is one of necessity. In all the circumstances it is said that, on this new ground, the appeal should be allowed and that, in any event, an appropriate question should be referred to the CJEU.

It is properly accepted on behalf of the appellant that Directive 2013/33/EU now relied upon is not binding on the United Kingdom. It is not therefore in issue in these proceedings. Where it does apply, it sets out an express legislative code which governs the circumstances in which an applicant for international protection may be detained. Article 8(1) provides that the member states to which it applies “shall not hold a person in detention for the sole reason that he or she is an applicant” for international protection: see para 15 of the JN judgment. Article 8(2) then provides that “when it proves necessary and on the basis of an individual assessment of each case, member states may detain an applicant, if other less coercive alternative measures cannot be applied effectively”. Article 8(3) then provides that an applicant for international protection “may be detained” only on certain exhaustive grounds.

By contrast, as is correctly submitted on behalf of the SSHD, the Citizens Directive contains no legislative provisions which refer expressly to detention. Articles 27 and 28 are concerned respectively with restrictions on freedom of movement and residence and removal. The substantive issue in JN was whether the freestanding power contained in article 8(3)(e) was compatible with fundamental rights. A question referred by the Dutch court was whether such a power could be compatible with article 5 of the ECHR “if such detention was not imposed with a view to removal”. The CJEU held (in para 82) that the provision was valid.

There is no similar freestanding power in EU law applicable in the United Kingdom. Moreover, the JN case was not concerned with the central issue in the Nouazli case, namely whether detention may be permitted in circumstances prior to the making of a decision to effect the removal of the family member of an EEA national. By contrast, Directive 2013/33/EU contains a “pre-decision” power to detain in order to decide on an applicant’s right to enter (article 8(3)(c)) and in order to secure the transfer of a claimant for international protection to the responsible member state (article 8(3)(f)). Those powers were not in issue in Nouazli.

I have set out in detail above the basis upon which in my opinion the appeal of the appellant should be dismissed. By contrast, the CJEU in JN was considering a different legislative provision and did not purport to address the issue before the court in this appeal. I would accept the submission made on behalf of the SSHD that the CJEU did not lay down minimum criteria that must be satisfied in all cases within the scope of EU law. It was instead addressing the requirements that must be satisfied before the exercise of a specific statutory power of unusually broad scope.

For these reasons I would not accept that this new point affords any supportable basis for allowing the appeal or indeed for making a reference to the CJEU. I would therefore dismiss the appeal for the reasons I gave earlier.

I agree that the appeal should be dismissed for the reasons given by Lord Clarke. I add a few words of my own to underline the need to avoid overcomplicating what is in essence a relatively narrow, albeit important, issue.

The appellant has an appalling record of thefts and other crimes (described by the tribunal as mainly “petty opportunistic thefts” not involving violence) extending over a decade before the events in question. They had resulted in jail terms amounting cumulatively to at least five years. It is not surprising that the Secretary of State’s patience ran out in early 2012 and that she set in motion steps for his removal from this country. There was an administrative muddle in April 2012 over the powers used to detain him, but that is not an issue in the appeal. Nor is it argued that the detention was in itself unreasonable in the circumstances, assuming there was power to do it.

The Secretary of State’s problem was that by then he had acquired permanent rights of residence here under European law, and thus could only be removed on “serious grounds of public policy or public security”. He was entitled to have that issue determined by the First-tier Tribunal. They decided the point in his favour in on 2 January 2013, and the Secretary of State has properly accepted that decision.

We are concerned solely with his detention under regulation 24(1) from 3 April to 6 September 2012 (on bail from 6 June); and thereafter under regulation 24(3) (again on bail) until the tribunal’s decision. The period of actual detention therefore lasted little over two months. On one view the case could be seen as an example of the system working as it should. However, he now seeks damages for that short period of detention, on the basis that the powers on which the Secretary of State relied did not comply with European law.

Mr Saini QC (who did not appear below) has developed his case in elaborate detail. In terms of written submissions it is to be found in a 55-page statement of case, to which were added shortly before the hearing a 12-page note on supplementary authorities, and an 18-page note concerning “statutory and factual context”. They depart in a number of respects from the case as presented below. For the Secretary of State Mr Ward QC has not objected to these changes, but (perhaps understandably) has felt it necessary to respond in kind, with a 73-page statement of case. The bundles of authorities include 184 items, including cases, legislative material and academic commentary.

I am however grateful to Mr Saini, in response to my request on the first day of the hearing, for reducing his submissions to a two-page “summary of appellant’s challenge”. Although the summary contains a note to the effect that “all of the points” in the submitted case “are maintained”, I assume that summary can be taken as indicating the substantial points on which he now relies.

The summary identifies four matters of challenge. There is some overlap between them but the essential points can be stated briefly:

Equality/discrimination - applicable to regulation 24(1) only.The power to detain an EEA national under regulation 24(1) is discriminatory on the grounds of nationality, contrary to TFEU article 18, because there is no equivalent power in relation to a third country national.

Proportionality - applicable to regulation 24(1) only.The power was introduced for the first time in June 2009. The Secretary of State has failed to show a need for a power which had not been required before. Nor had she shown any reason why consideration of deportation could not have taken place during the criminal custodial term.

Legal certainty, proportionality and time limits - applicable to regulation 24(3) as well as regulation 24(1). This is principally a challenge to the Hardial Singh principles, which do not require a fixed time limit.

Further transposition flaws - applicable to both regulation 24(1) and 24(3). Regulation 24 is not in terms made subject to the principles set out in articles 27 and 28 of the Directive, or in regulation 21 which gives effect to them in domestic law. In particular the test of “reasonable grounds” under regulation 24(1) is well below the threshold required by article 27.

On the first point I have nothing to add to what Lord Clarke has said (in agreement with the Court of Appeal). Article 18 is not directed to the comparative treatment of nationals of other countries, who are outside the scope of European law. The alternative formulation based on the case of R v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department (Case C-370/90) [1992] 3 All ER 798(raised for the first time in the note on supplementary authorities) is equally unsustainable for the reasons given by Lord Clarke.

On the second point, the Secretary of State has a wide margin or appreciation as to the powers required to give effect to the Directive. If their exercise were shown to be disproportionate in a particular case (which is not alleged here), it could to that extent be disapplied. It is not a reason for striking down the regulation. On the third point, the Hardial Singh principles are well established, and approved by high authority; their legality is not open to serious question for the reasons given by Lord Clarke.

The last question raises a possible point on the construction of the definition (in regulation 2(1)) of the expression “decision … that concerns … a person’s removal from the United Kingdom”. If necessary I would read this as extending to a decision such as in the present case which is part of the process leading to removal. But in any event the powers in article 24 are ancillary to the substantive power of removal under regulation 19(3)(b). That refers in terms to the requirements of regulation 21 (reproducing articles 27 and 28). It follows that the Secretary of State cannot properly exercise her powers under article 24, with a view to action under article 19(3)(b), without taking account of the need as part of that process to satisfy regulation 21. That seems to me sufficient to ensure that the action is compliant with the Directive.

For these reasons, which are no more than a distillation of those given by Lord Clarke, I would dismiss the appeal.