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

Article 14(2) of the Citizens’ Directive permits routine questions which obtain information relevant to an EEA national’s residence status. Verification is permitted where the answers, alone or with other information, give rise to a reasonable doubt. Routine questioning is not itself systematic verification, because the subsequent checking process remains conditional on reasonable doubt.

Police officers may lawfully ask non-coercive questions which a member of the public or an immigration officer could lawfully ask. A policing purpose is not limited to crime investigation or public order and may include assisting the Secretary of State with the enforcement of immigration law.

The claimant, a law centre, challenged the implementation of the first strand of Operation Nexus, under which arrested EEA nationals were routinely asked questions about entry, employment, financial means and family relationships relevant to their residence rights.

Permission had initially been refused but was granted on renewal. The surviving grounds alleged that the questioning involved systematic verification contrary to Article 14(2) of the Citizens’ Directive and that police officers lacked lawful authority to ask questions for immigration-enforcement purposes. The central issues were whether routine questioning constituted verification and whether the police questioning was lawful.

1. Article 14(2). The claim on the first ground failed. The process under Operation Nexus involved initial questioning followed by checking of the answers. Further evidence or an interview was sought only where the answers, alone or together with other information, gave rise to a reasonable doubt about the exercise of treaty rights. That process complied with Article 14(2) and Regulation 20B.
2. The fact that questions were routinely asked of arrested EEA nationals did not make the verification systematic. Routine questioning could be the means by which a reasonable doubt arose. The requirement of reasonable doubt before checking or further investigation excluded systematic verification from the operative process.
3. Lawfulness of police questioning. A police officer may ask non-coercive questions which a member of the public or an immigration enforcement officer could lawfully ask. The questions did not require a coercive police power and were not rendered unlawful merely because they were separate from the investigation of the offence for which the person had been arrested. The principles in Rice v Connolly [1966] 2 QB 414 and Steel v Goacher [1983] R.T.R. 98 supported that conclusion.
4. In any event, policing purposes were not confined to investigating crime or maintaining public order. Assisting the Secretary of State in the proper enforcement of immigration law fell within the lawful purposes for which police officers could ask such questions.
5. The claim was therefore dismissed. The actions of police officers under Operation Nexus did not breach Article 14(2), and the questioning was lawful.

This was a first-instance judicial review. Permission was refused by Blake J on 21 September 2016 and granted on renewal after an oral hearing before Dove J on 9 November 2016.