R (on the application of Nouazli) v Secretary of State for the Home Department  EWHC 567 (Admin); (2013) PLLR 052
Immigration - European Law - Removal - Detention
A host state was entitled to detain an individual who is a family member of a European Economic Area national and rules permitting such detention were not contrary to EU Law.
15 March 2013
(1) The proceedings concerned the Defendant's power to detain a family member of a national of the European Economic Area pending:
(a) Consideration by the Defendant of a decision to remove such a person; and
(b) Removal of such a person following the decision to remove/deport having been lawfully made.
(2) It was submitted that the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003, the ‘Regulations') were invalid and of no effect because they were not compatible with EU law.
(3) The Claimant was an Algerian national who arrived in the UK in March 1996 and married a French citizen on June 1997. On 8 January 2007, the Defendant made the decision to remove the Claimant from the UK on the basis of some 28 convictions that the Claimant had obtained whilst in the UK. The Claimant was detained pending deportation on 3 April 2012. He was released on bail on 6 June 2012. This first order to detain was later withdrawn, but on 7 September 2012, the Claimant was given notice of a new decision to deport, substantially based on the same grounds as the first order.
(4) By this claim, the Claimant sought to raise the following issues:
(a) Did the immigration detention of a third county national who was a family member of an EU national fall within the scope of Community law so as to afford the individual protective rights under EU law, or was it simply a matter within the scope of the domestic law of the host Member State?
(b) Was the immigration detention of a TCN pending removal following conviction prohibited under EU law?
(c) If detention was permitted, ought it to have been compliant with EU law?
(d) Was Regulation 24(1) compatible with EU law? The Claimant alleged that Regulation 24(1) was incompatible with Article 27 of the Citizenship Directive, as this prohibited any detention prior to a decision to remove.
(e) Was the Claimant's detention unlawful because it discriminated against him on grounds of nationality when compared to detention of an alien in similar circumstances?
(f) Was the Claimant's detention between 3 April 2012 and 6 June 2012 unlawful?
(5) A second period of detention was also challenged, this being the period following 7 September 2012, during which the Claimant remained on bail subject to conditions.
(6) It was common ground between the parties that a family member of an EEA national was entitled to the protection and benefits accorded by the Citizenship Directive (‘CD').
(7) The Claimant further submitted that he was treated less favourably than a non-British citizen who had served a term of imprisonment and who was liable to deportation. It was alleged that such discrimination was incompatible with Article 24 CD.
(8) HELD: The Court rejected the Claimant's first submission. Article 27 CD did not restrict, but instead expressly permitted a host state from restricting the freedom of a TCN.
(9) Although the Court was troubled by the fact that Regulation 24(1) seemed to permit detention for an uncertain period of time, so long as the conditions set out in Article 27 CD were fulfilled, there was not necessarily an incompatibility between the Regulations and Article 27.
(10) The Court thus found that:
(i) Immigration detention pending removal following conviction was not prohibited under EU law;
(ii) Immigration detention did have to comply with EU law; and
(iii) Regulation 24(1) was compatible with EU law.
(11) In relation to the submissions as to discrimination, the Court considered that under the Citizenship Directive and the 2006 Regulations, EEA nationals and their family members benefited from extended rights. It was also accepted that the regimes in place to detain non-British citizens and EEA nationals differed. This did not mean however, that there was any disadvantage to EEA nationals or their family members, nor discrimination in any other sense. The Court held that there was no relevant discrimination that offended EU law.
(12) The Claimant's detention until 6 June 2012, and thereafter on bail until 2 January 2013 was held not to be unlawful. The Claimant's challenge was therefore dismissed.
 - Citizenship Directive.
 - First submission.
 - Issues 2-4.
 - Extended rights.
 - No relevant discrimination.
 - Detention lawful.
 - Conclusion.
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