R v Secretary of State for the Home Department

A statutory power to detain a person while considering removal under the EU free-movement regime is lawful where it is ancillary to the removal power, proportionate and reasonably exercised. EU discrimination law does not generally compare beneficiaries of that special legal order with third-country nationals outside it.

Immigration detention requires individual scrutiny under the Hardial Singh principles. Those principles limit detention by its purpose, reasonable duration, the practical prospect of removal and the authority’s diligence. EU law does not additionally require a fixed statutory time limit. The absence of such a limit may nevertheless be relevant when deciding whether safeguards against arbitrary detention are adequate.

The appellant, an Algerian national and former spouse of a French national, had acquired a permanent right of residence in the United Kingdom. Following repeated criminal convictions, the Secretary of State detained him while considering removal under regulations 19 and 24 of the Immigration (European Economic Area) Regulations 2006. He was detained from 3 April to 6 June 2012 and then remained subject to bail restrictions until 2 January 2013.

Eder J rejected the material part of his judicial review claim in [2013] EWHC 567 (Admin). The Court of Appeal dismissed his appeal in [2013] EWCA Civ 1608.

The Supreme Court considered whether the detention regime was discriminatory, disproportionate or legally uncertain; whether a fixed time limit was required; whether regulations 21 and 24 accurately transposed articles 27 and 28 of Directive 2004/58/EC; and whether the appellant’s detention and bail restrictions were consequently unlawful.

1. Disposition. The Supreme Court unanimously dismissed the appeal. Lord Clarke gave the principal judgment, with which Lord Neuberger, Lady Hale, Lord Carnwath and Lord Toulson agreed. Lord Carnwath added concurring reasons.
2. Regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 did not unlawfully discriminate against EEA nationals or their family members. Article 18 TFEU concerns discrimination between Union citizens and nationals of the host member state. It does not provide a comparison with third-country nationals who fall outside the EU legal order. The regimes also had to be considered as wholes: beneficiaries of EU law enjoyed substantially stronger residence and removal protections than persons subject to ordinary immigration control (paras 39–51).
3. The alternative comparison based on the position of an EU-national spouse did not establish discrimination. Any effect of temporary detention upon the spouse’s free-movement rights was fact-sensitive. On the facts, the spouses had long been separated and no actual or realistic effect upon the former spouse’s rights was shown. That argument could not invalidate regulation 24(1) in every case, although a disproportionate measure might be disapplied in a particular case (paras 52–61).
4. Regulation 24(1) had to be applied proportionately. A power subject to that requirement was not inherently disproportionate. No case-specific disproportionate exercise of the power had been alleged (para 62).
5. EU law did not require a fixed statutory limit upon detention under regulation 24. The Hardial Singh principles supplied legally effective safeguards: detention must serve the purpose of deportation; last no longer than reasonable in all the circumstances; cease when timely deportation is no longer realistically achievable; and be accompanied by reasonable diligence and expedition. The Secretary of State bears primary responsibility for compliance, subject to judicial supervision. The absence of a fixed limit may be relevant in an individual case but does not itself make the regime unlawful (paras 63–78).
6. Regulation 24 was ancillary to removal under regulation 19(3)(b), which was expressly conditioned by regulation 21. Regulation 21 accurately reproduced the safeguards in articles 27 and 28 of Directive 2004/58/EC. Detention therefore had to remain suitable, proportionate and reasonably exercised. The later decision in JN concerned a materially different legislative power and did not establish universal minimum criteria invalidating this regime (paras 80–84, 88–96).
7. The detention and bail restrictions were not unlawful on any ground advanced. The relevant EU-law principles were acte clair, so no preliminary reference was made to the CJEU (paras 85–87, 96).

1. United Kingdom Supreme Court: Appeal dismissed unanimously in [2016] UKSC 16.
2. Court of Appeal: The appellant’s appeal was dismissed in [2013] EWCA Civ 1608, reported at [2014] 1 WLR 3313.
3. Administrative Court: Eder J refused the material part of the judicial review claim in [2013] EWHC 567 (Admin).