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

The claimant challenged Operation Nexus on the grounds that (1) questioning of arrested EEA nationals amounted to systematic verification contrary to Article 14(2) of Directive 2004/38/EC as implemented by regulation 20B of the Immigration (European Economic Area) Regulations 2006, and (2) police questioning of detained persons for immigration purposes was unlawful because it was not for policing purposes. The court held that routine questioning in custody does not itself amount to verification under Article 14(2); verification under Regulation 20B occurs only where a reasonable doubt arises and only then may further steps be taken, so the process is not systematic. The court further held that police officers lawfully may ask non-coercive questions and that assisting the Secretary of State to enforce immigration law falls within lawful policing purposes. The claim was therefore dismissed on the grounds argued in the judgment.

The claimant, a law centre and registered charity, sought judicial review of aspects of Operation Nexus, introduced by the Secretary of State for the Home Department and implemented with assistance from the Metropolitan Police Service. The challenge principally attacked (i) the practice of asking detained EEA nationals questions about their exercise of EU treaty rights as amounting to systematic verification contrary to Article 14(2) of the Citizens' Directive (as implemented by regulation 20B of the 2006 Regulations), and (ii) the lawfulness of police officers asking those questions where they are not asked under criminal caution and are not part of the criminal investigation.

• Procedural posture: Permission to bring the renewed claim was initially refused by Blake J on 21 September 2016 but subsequently granted on renewal after an oral hearing before Dove J on 9 November 2016.
• Issues framed:
  1. Whether the implementation of Operation Nexus involved systematic verification of EEA nationals' right of residence contrary to Article 14(2) and Regulation 20B.
  2. Whether police officers' questioning of detained persons under Operation Nexus was unlawful because it was not for policing purposes and had no statutory basis.
• Relevant law: Article 14(2) and Article 24(1) of Directive 2004/38/EC; Regulation 20B of the Immigration (EEA) Regulations 2006; common law principles on police questioning as exemplified in Rice v Connolly and Steel v Goacher.

Court's reasoning: The court accepted the Secretary of State's submission that Regulation 20B implements Article 14(2) by providing a verification process that can be invoked when a reasonable doubt arises. Asking routine factual questions in custody may generate reasonable doubt but does not itself constitute the verification step; the verification/checking that triggers further immigration process is not systematic because it requires a reasonable doubt as a condition precedent. On the policing point, the court held that police officers have the common law ability to ask non-coercive questions and that questions which would be lawful if asked by Immigration Enforcement Officers or even a private individual are not rendered unlawful merely because they are asked by a police officer. Moreover, assisting the Secretary of State in enforcing immigration law is within policing purposes. The court therefore dismissed the legal challenges brought under the grounds considered.

The claim is dismissed. The court held that (1) the questioning of arrested EEA nationals under Operation Nexus does not amount to systematic verification contrary to Article 14(2) because Regulation 20B requires a reasonable doubt before verification and thus the checking/verification is not systematic; and (2) police officers lawfully may ask the non-coercive questions used in Operation Nexus and assistance to the Secretary of State in enforcing immigration law falls within lawful policing purposes.

Permission to apply for judicial review was refused by Blake J on 21 September 2016; the application for permission was renewed and granted after an oral hearing before Dove J on 9 November 2016.