Nouazli) R (On the Application Of) v Secretary of State for the Home Department

Article 27 of Directive 2004/38/EC applies to measures that interfere, or may interfere, with free movement, including administrative detention connected with deportation. Detention pending a removal decision may in principle be justified on public-policy or public-security grounds, provided the Directive’s safeguards and proportionality requirements are satisfied.

EEA nationals cannot be detained or removed under the ordinary foreign-criminal regime otherwise than in accordance with the Immigration (European Economic Area) Regulations 2006. Article 18 of the Treaty does not require a comparison between EEA nationals and third-country nationals subject to different legal regimes. New points generally should not be raised for the first time on an appeal, particularly in judicial-review proceedings.

The appellant, a family member of an EEA national, challenged his detention pending consideration of deportation following repeated criminal offending. The Secretary of State relied on regulations 19 and 24 of the Immigration (European Economic Area) Regulations 2006, and on domestic deportation and detention powers.

Eder J dismissed the judicial-review claim: [2013] EWHC 567 (Admin). The appellant appealed on the compatibility of detention with Directive 2004/38/EC, the compatibility of domestic detention powers with European Union law, discrimination based on nationality, and the legality of detention under paragraph 2(2) of Schedule 3 to the Immigration Act 1971.

1. Appeal dismissed. The detention was not rendered unlawful by the alleged incompatibility of the domestic regime with Directive 2004/38/EC.
2. Article 27 is primarily concerned with restrictions on entry and residence, but its broad language extends to measures which interfere, or may interfere, with free movement. Administrative detention connected with deportation can therefore fall within its scope. Detention pending a decision whether to remove a person may in principle be justified by public policy or public security, subject to proportionality and the Directive’s other safeguards. The court regarded the proportionality requirement as providing protection analogous to that recognised in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 W.L.R. 704.
3. Regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 is compatible with the Directive where its safeguards, reflected in regulation 21, are met. Section 36(1) of the UK Borders Act 2007 operates only for the automatic-deportation scheme in section 32(5), and section 33(4) excludes removal contrary to European Union rights. EEA nationals therefore cannot be detained pending deportation or removed otherwise than in accordance with the Regulations.
4. The challenge based on paragraph 2(2) of Schedule 3 to the Immigration Act 1971 was a new point not pursued below. Applying the principle stated in Jones v MBNA International Bank [2000] EWCA Civ 514, it was inappropriate to permit the point to be raised for the first time on appeal, especially in judicial-review proceedings.
5. Article 18 of the Treaty does not govern a comparison between EEA nationals and third-country nationals. They enjoy different residence and removal rights and are subject to different legal regimes. Garcia Avello v Etat Belge Case C-148/02 [2004] 1 CMLR 1 concerned discrimination between Union citizens of different nationalities and did not assist the appellant.
6. The court observed, without deciding the point, that regulation 21(5)(e) prevents removal based simply on criminal convictions, but does not necessarily prevent reliance on the conduct which produced them where that conduct demonstrates a threat to public policy or public security.

• Court of Appeal (Civil Division) — appeal dismissed.
• High Court of Justice, Queen’s Bench Division (Administrative Court) — Eder J dismissed the judicial-review claim: [2013] EWHC 567 (Admin).