As if Michael Gove MP needed further reminding, in wake of Colin Yeo’s appearance on World at One on Wednesday where he pointed out the fundamental error of the Justice Secretary’s assertion that Britain cannot deport EEA nationals with a criminal record, the Supreme Court in R (on the application of Nouazli) (Appellant) v Secretary of State for the Home Department (Respondent) [2016] UKSC 16 makes clear that EEA nationals can be deported by virtue of regulation 19 (3) (b) of the EEA Regulations 2006 ‘if the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or health…’

However the issue in the case was not the power to deport EEA nationals, but the power to detain them prior to possible deportation, as afforded to the UK by virtue of Regulation 24 (1) of the EEA Regulations 2006.

The case concerned an Algerian national (the appellant) who entered the United Kingdom in 1996 and was refused asylum. He married a French national in 1997. He was granted a residence permit, and had acquired a right of permanent residence by February 2003. He had two children with his wife but they were estranged by July 2004 and she returned to France in late 2005. By the end of January 2012, the Appellant had acquired 28 criminal convictions for 48 offences, including one 23-month sentence. The Home Secretary unsuccessfully attempted to deport him for that reason in January 2007. But he continued to offend, and was sentenced to 20 weeks’ imprisonment for an offence of theft on 25 January 2012.

On 3 April 2012, just as the appellant was due to be released from custody for that offence, the Secretary of State served him with notice of her intention to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006, on grounds that he would pose “a genuine, present and sufficiently serious threat to the interests of public policy” if he remained. He was detained from 3 April 2012 to 6 September 2012 (on bail from 6 June) under regulation 24(1) and Schedule 3 of the Immigration Act 1971 pending a decision being made on whether to deport him. He was served with a fresh Notice to that effect on 7 September 2012, and was again detained from 7 September 2012 until 2 January 2013.

The appellant contended that his detention pending removal was unlawful, and sought judicial review. He argued that his detention contravened article 27(1) of the Citizens Directive (2004/38/EC) and that regulation 24(1) was incompatible with European law and unlawful because it discriminated against him on the basis of nationality without lawful justification contrary to Article 18 TFEU (there being no equivalent provision for pre-decision detention in relation to family members of British nationals or non-EEA nationals). The Upper Tribunal and the Court of Appeal dismissed his claim and appeal respectively.

The appeal raised six issues:

1. Does the detention power under regulation 24(1) of the EEA Regulations 2006 discriminate without lawful justification against EEA nationals and their family members?
2. Is the power in regulation 24(1) to detain before the making of a decision to deport disproportionate?
3. In particular, does the absence of a time limit render such detention unlawful under EU law?
4. Does regulation 24(1) unlawfully restrict the rights of EEA nationals and their family members by contrast to those enjoyed before the coming into force of the Citizens Directive which the EEA Regulations 2006 purport to implement?
5. Do regulations 21 and 24 of the EEA Regulations 2006 fail accurately to transpose the safeguards of articles 27 and/or 28 of the Citizens Directive?
6. Were the appellant’s administrative detention from 3 April until 6 June 2012 and the bail restrictions imposed upon him until 2 January 2013 unlawful by reason of the matters raised in questions (1) to (5) above?

The Supreme Court unanimously dismissed the appeal on all grounds. Lord Clarke gave the lead judgment.

In considering whether regulation 24 (1) of the EEA Regulations discriminates against EEA nationals, Lord Clarke referred to Edward and Lane on European Union Law (2013), where, at para 8.02, Professor Sir David Edward QC, former UK judge at the European Court of Justice, writing extra-judicially, observed: “Discrimination against third country nationals is not prohibited. It is presumed, and indeed expected, that they will be treated differently.”

45. Such “discrimination” is simply a function of the limited scope of the EU legal order. It is not legitimate to draw a comparison between those exercising EU rights and other third country nationals for the purposes of EU discrimination law. (Lord Clarke).

Mr Saini QC for the appellant attempted to argue a hypothetical point that were the appellant’s wife English as opposed to French, he would not have been detained, and that therefore the appellant’s wife’s freedom of movement was being compromised. However Lord Clarke was unimpressed with this argument, since the appellant had been estranged from his wife for more than 10 years, so his detention could not have impacted on her in any way.

Lord Lane went on to conclude that so long as 24 (1) is applied proportionately, that does not render detention prior to a decision of whether or not to deport disproportionate. Further he found that provided the SSHD applied the Hardial Singh principals, where a reasonableness test is applied to detention, then there was no need for specific custody time limits. He also found that regulations 21 and 24 do not fail accurately to transpose the safeguards in articles 27 and 28 of the Directive and are compliant with it.

In a short concurring judgment, Lord Carnwath states:

98. The appellant has an appalling record of thefts and other crimes (described by the tribunal as mainly “petty opportunistic thefts” not involving violence) extending over a decade before the events in question. They had resulted in jail terms amounting cumulatively to at least five years. It is not surprising that the Secretary of State’s patience ran out in early 2012 and that she set in motion steps for his removal from this country.

A quote that could have come from the Justice Secretary himself?