Nouazli, R (on the application of) v Secretary of State for the Home Department

Immigration detention of a third-country-national family member of an EEA national pending removal falls within EU law and must comply with its safeguards. EU law does not prohibit such detention following criminal convictions. Regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 is compatible with EU law where there are objectively reasonable grounds for suspecting that the person may be removed on public-policy or public-security grounds, and the detention satisfies proportionality. Different detention regimes for EEA-related persons and other foreign nationals do not, without more, establish unlawful nationality discrimination. The legality of the detention depends on the overall legal regimes and their different thresholds for removal.

The claimant, an Algerian national and family member of a French citizen, was detained after completing a custodial sentence. His first deportation decision was withdrawn and treated as void from the outset, so the initial detention was considered under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006. A later deportation decision engaged regulation 24(3), and the claimant remained on bail until at least 2 January 2013.

The judicial review challenged the compatibility of regulations 24(1) and 24(3) with EU law, including the Citizenship Directive and the prohibition of nationality discrimination. The central issues were whether detention pending a removal decision was permitted, whether regulation 24(1) complied with EU law, and whether the differing detention regimes were discriminatory.

1. EU-law scope. Immigration detention of a third-country-national family member of an EU national pending removal falls within the scope of EU law and attracts the relevant protective rights.
2. Permissibility of detention. EU law does not prohibit immigration detention pending removal following a criminal conviction. Article 27 of the Citizenship Directive permits restrictions on freedom of movement, including detention, provided the statutory grounds and safeguards are satisfied.
3. Regulation 24(1). The phrase permitting restrictions on freedom of movement is wide enough to include detention before a formal removal decision. There is no necessary incompatibility merely because detention precedes the decision to remove. Regulation 24(1) requires objectively reasonable grounds for suspecting that the person may be removed under regulation 19(3), and detention remains subject to the principle of proportionality and the other requirements of article 27.
4. Discrimination. Comparison between the Immigration Act 1971 regime and the 2006 Regulations was materially flawed. EEA nationals and their family members enjoy wider residence and movement rights, while removal under regulation 19(3)(b) requires the higher threshold of public policy, public security or public health and, under regulation 21, a genuine, present and sufficiently serious threat. The different detention powers therefore did not establish relevant discrimination under EU law.
5. Disposition. The detention in custody until 6 June 2012 and on bail until 2 January 2013 was lawful. Any question concerning detention after 2 January 2013 was adjourned with liberty to apply. Counsel were directed to agree a draft order, including costs.