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In The Centre for Advice On Individual Rights In Europe v The Secretary of State for the Home Department & Anor[2017] EWHC 1878 (Admin) (21 July 2017) the excellent AIRE centre brought a challenge to the way Operation Nexus operates in respect of European and EEA nationals.
Operation Nexus has been covered previously by Free Movement, most recently reporting on the belated released of guidance, with calls for both evidence and funding for this recent challenge publicised via the blog.
What is Nexus?
As detailed in previous writing on the subject, and as set out in this judgment [6]
Operation Nexus has three strands or elements; only the first of these strands is the subject of this challenge:
A number of custody suites in police stations have been identified as dealing with a high level of foreign national offenders. Those custody suites, are described as “Hub Stations”. Immigration and Enforcement Officers, (“IEO”), employed by the SSHD have been allocated to those Hub Stations. Their function is to assist police officers in dealing with arrested persons whose immigration status gives rise to cause for concern. Police stations which do not have IEO may, if necessary, call them in to assist. In addition, all Police Officers have access to immigration records held by the SSHD through the Immigration Enforcement Command and Control Unit, (“CCU”), based in Manchester.
ii) Nexus High Harm.
This strand deals with the category of foreign national which have been identified as meeting the criteria for deportation. A team of IEO actively seeks to identify such persons.
iii) Intelligence and Data Sharing
As the title suggests, this deals with the increased sharing of intelligence and data between the Home Office and the police service to identify and remove those foreign nationals identified as creating a risk of high harm.
The majority of the complaints around Operation Nexus have so far congregated around the second strand listed above, with concerns raised about deportation on the basis of allegations of criminal conduct (rather than convictions) and the procedural protections available to those facing such allegations.
Grounds of Challenge
However, in this case, as mentioned above, only the first strand was subject to challenge in this case, and only in respect of European and EEA nationals. The grounds as originally formulated were as follows [4-5]:
Ground 1 asserts that the implementation of Operation Nexus is in breach of Article 14(2) of the Citizens’ Directive;
Ground 2 complained of a lack of clear public explanation or public policy;
Ground 3 asserts an improper use of police powers to gather information for the purposes of immigration removal; and
Ground 4 based on discrimination in policing policy and a failure to comply with the public sector equality duty in section 149 of the Equality Act 2010.
Although not explicitly stated, permission does not appear to have been given on Grounds 2 & 4, leaving judgment in relation to Grounds 1 & 3 only.
The relevant law
At the time of writing, and certainly through to 2019, EEA nationals have the right to reside in the UK subject to certain conditions. As set out in the judgment, these are as follows [9]:
They can reside in the UK for up to three months without condition provided they are not an unreasonable economic burden on the state. After the initial period of three months they can continue to reside provided they are exercising their treaty rights, namely they are working or otherwise economically self-sufficient or in a family relationship with someone who has a right of residence. An EEA foreign national is subject to the risk of removal if not exercising their treaty rights. Residence in the UK by an EEA national not exercising treaty rights is not a criminal offence.
Article 14 of the Citizens’ Directive allows member states to verify whether an EEA citizen is in the UK in accordance with these rules. However, it is only ‘in specific cases where there is a reasonable doubt’ that the rules are being satisfied that such verification can take place: it cannot be ‘carried out systematically’.
And it was here that the main thrust of the challenge lay. The claimants argued that Operation Nexus, in questioning every EEA national who is arrested as to their immigration status and situation, was just the sort of systematic verification prohibited by the directive, where the ‘reasonable doubt’ requirement was not considered.
Questioning v verification
The Secretary of State argued in response how a reasonable doubt could ever arise if no questions could be asked. She drew a distinction between the questioning of arrestees, and their later investigation. She relied on Commission v United Kingdom[2016] 1 WLR 5049 which held that it was permissible and not discriminatory to require evidence of lawful residence in order to obtain tax credits in the UK. McGowan J giving judgment found favour with this argument [23]:
In Commission v UK an applicant had to answer certain questions, thereby providing information including about their residence status, for the purposes of claiming a benefit. If the information provided gave rise to concern, then it would be checked. In this case the first Defendant’s argument that the same process is followed in the implementation of Operation Nexus must be the logical and correct interpretation of the factual process.
This distinction between questioning and verification also allowed the Secretary of State to argue that the process was not systematic: while all arrestees are asked questions about their immigration status, only those where a reasonable doubt is raised will be subject to a further investigation.
Improper police purpose
The third (and only other surviving) ground argued that it was an improper use of police powers to question arrestees and gather information for the purposes of immigration removal, although the arguments advanced by the claimant in support of this point do not get a lot of air time in the judgment.
McGowan J essentially holds that the ‘Nexus questions’ are not asked under caution, and a police officer has as much right as anyone else to ask someone a question where there is no obligation to answer them. She concludes as follows [32]:
the ambit of policing purposes is not confined to the investigation of crime or maintenance of public order and must encompass the power of a police officer to ask questions in order to provide the answers to the SSHD whose functions include the proper enforcement of immigration law. Even if the lawfulness of the posing of a question is determined by the status of the questioner, it cannot be the case that the question is not lawful because the posing of the question is not for a policing purpose
And so the challenge, on these fairly narrow points, failed. On the plus side, though, the litigation may have encouraged the Home Office to publish its Operation Nexus guidance, and also shows what can be achieved with crowd funded litigation.
