Sean O'BeirneOn 23 November 2015 the Supreme Court heard a two day appeal of the decision in R (Nouazli) v Secretary of State for the Home Department [2013] EWCA Civ 1608.

Background Facts

The appellant, an Algerian married to an EEA national, was detained pursuant to regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 pending a decision being taken whether to deport him.

There is no equivalent provision for pre-decision detention in relation to family members of British nationals or non-EEA nationals, unless the detainee has previously been sentenced to a custodial sentence of more than 12 months. The appellant contends that the detention was unlawful in that it was discriminatory and inconsistent with EU law, in particular, article 27 Directive 2004/38/EC and article 18 TFEU.

Proceedings before the Upper Tribunal

The appellant sought judicial review of the Secretary of State’s decision to detain him pending her decision on his deportation. He argued that: (i) as a family member of an EEA national he was entitled to the protection of the Directive and that his pre-decision detention contravened article 27(1); (ii) regulation 24(1) and section 36 of the UK Borders Act 2007 (the legislative basis for pre-decision detention) were incompatible with European law; and (iii) regulation 24(1) was unlawful because its exercise involved discrimination against him on the basis of nationality.

The Upper Tribunal dismissed his claim. Eder J. held that the words “may restrict the freedom of movement” in article 27(1) of the Directive were wide enough to encompass detention of any kind, including pre-decision detention, provided that it complied with the requirements of the article. He also rejected the appellant’s discrimination argument because he did not consider that a proper comparison could be drawn between EEA nationals and nationals of countries outside the EEA.

Court of Appeal decision

The Court of Appeal also dismissed the appeal upholding the view of the Upper Tribunal and rejecting the argument that the wording of article 27(1) did not permit administrative detention pending deportation.

The Court of Appeal also rejected the view that the appellant’s detention was unlawful because it discriminated against him on the grounds of his nationality contrary to article 18 TFEU. The Court of Appeal held that article 18 was only concerned with the way that Member States treat non-national citizens of the Union present in their country. Therefore, persons who are not citizens of the Union, such as the appellant, are not afforded protection by article 18 unless the way in which they were being treated undermined the laws of the Union.

Further, the Court of Appeal held that that there was a fundamental difference between non-EEA nationals (who have no entitlement to reside in the UK and can be deported if the Secretary of State deems their removal to be conducive to the public good) and EEA nationals who have a right to reside in the UK and who enjoy protection against removal in the form of regulations and treaties. Consequently, the different way in which the UK’s removal regime operated in relation to EEA and non-EEA nationals (and their family members) was justified.

The Supreme Court appeal

The main issue to be considered by the Supreme Court is whether the power under regulation 24(1) to detain prior to a deportation decision discriminated without lawful justification against EEA nationals and their family members. The Supreme Court will therefore have the opportunity to provide clarification on who can expect to be protected by article 18 TFEU. If the Supreme Court chooses to uphold the appeal the way in which a significant number of existing European provisions are applied will need to be reconsidered.

The Supreme Court appeal was heard by a panel of five Lord Neuberger, Lady Hale, Lord Clarke, Lord Carnwath and Lord Toulson.