Supreme Court: EU Law Fails ‘Nuisance’ Algerian Criminal

R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16 (20 April 2016)

Algeria and immigration bring to mind the image of radical Islam. For example, in a decade long deportation battle involving six Algerian men which represents a serious blow to UK counter-terrorism efforts, SIAC recently said: “It is not inconceivable that these appellants, if returned to Algeria, would be subjected to ill-treatment infringing article 3. There is a real risk of such a breach.” The home office is not pursuing a further appeal despite its insistence that it is “disappointed” with the ruling against the men, who are accused of having had “direct links” to Osama bin Ladin and are therefore seen as a “risk” by the authorities. But of course the context was radically different in the case of Rachid Nouazli, also an Algerian national who had serious problems of addiction to class A drugs such as crack and heroin and who was described by the criminal courts as “a pest, a nuisance” because of his recidivism. Nouazli was not a violent offender and his appeal involved a variety of themes including asylum, marriage, EU law and the highly controversial issue of immigration detention – a costly and demeaning way of dealing with the problems of immigration control.

Among other things, the Supreme Court considered whether the absence of a time limit rendered Nouazli’s detention unlawful under EU law. However, the outcome of the appeal demonstrates that EU law is not always a trump card against the host member state. Importantly, in the case of JN v United Kingdom [2016] ECHR 434, the European Court of Human Rights (First Section) ruled on 19 May 2016 that the absence of a time limit in UK immigration detention cases is not a breach of human rights. (Yet the court held that the lack of “due diligence” by the authorities resulted in a violation of article 5.) JN was unhappy with his long detention and complained about unclear time limits on the maximum period of immigration detention and the unavailability of automatic judicial review. If anything, the decision in Nouazli’s case produced the same result as JN (which involved an equally pestilent Iranian national who was sentenced to twelve months’ imprisonment for indecently assaulting two fifteen-year old girls).

In Nouazli, the multifarious points at play interlinked to themes embedded in the Citizens’ Directive, its transposition, proportionality, bail and detention. In particular, Lord Clarke clarified at the outset that the appeal threw up issues about the compatibility of regulations 21 (decisions taken on public policy, public security and public health grounds) and 24 (person subject to removal) of the Immigration (European Economic Area) Regulations 2006 with EU law. The appeal raised half a dozen issues and it was dismissed on all grounds. Thematically, it raised an important issue regarding whether the detention power under regulation 24(1) discriminates without lawful justification against EEA nationals and their family members?

Context

Nouazli arrived in the UK using false French identity documentation and claimed asylum; which was refused. A barber by profession, he married a French national working in the UK, withdrew his asylum claim, had two children (who were taken into care) and developed a serious drug problem. Because of five years of continuous residence, he acquired a right of permanent residence in the UK within the meaning of article 16(2) of the Directive and regulation 15(1)(b) of the 2006 Regulations.

Though Nouazli was self-harming, he did not resort to violence during the course of his offending. The First-tier Tribunal found that nothing in the character of Nouazli’s offences could be construed as anything other than “a petty criminal committing mainly theft offences to fund his drug use”. In earlier proceedings (in 2007) in the Asylum and Immigration Tribunal, because he had acquired permanent residence in the UK, Nouazli’s appeal was allowed on the basis that the threshold for expulsion – requiring “serious grounds of public policy or public security” – of permanent residents in article 28(2) of the Citizens’ Directive and regulation 21(3)regulation 21(3) of the 2006 Regulations  was not met.

Of course no detention case is complete without the famous principles, whose legality Nouazli attacked, espoused by Woolf J in Hardial Singh [1984] 1 WLR 704. The House of Lords approved of these principles in Tan Te Lam [1997] AC 97 and as observed by Dyson LJ in R (I) [2002] EWCA Civ 888 four points are particularly telling. First, the person’s deportation must be intended and the power to detain can only be used for that purpose. Second, the deportee may only be detained for a period that is reasonable in all the circumstances. Third, where prior to the expiry of the reasonable period, it becomes apparent that deportation will not be able to effected within that reasonable period, the authorities should not seek to exercise the power of detention. Finally, the authorities must act with reasonable diligence and expedition to effect removal. Lord Hope of Craighead KT endorsed this approach for the majority of the Supreme Court in WL (Congo) [2012] 1 AC 245.

This is a tediously complicated case in procedural terms because of the multiplicity of decisions made against Nouazli and connected appeals and proceedings in the Supreme Court arose out of his judicial review claim, refused by Eder J, issued in late April 2012. An important aspect of the case turned on article 18 TFEU, which prohibits “any discrimination on grounds of nationality” as regards the scope of application of the Treaties. Nouazli relied on the analysis of Holland’s Professor CWA Timmermans in The Law of the European Union and European Communities where the former CJEU judge claims article 18 TFEU is: “The most fundamental expression of the principle of equality in relation to the functioning of the Common Market”. At first instance, Eder J, see [2013] EWHC 567 (Admin), rejected the argument. Moore-Bick LJ, see [2014] 1 WLR 3313, subsequently held likewise and Lord Clarke concurred with their reasoning.

During his presence in the UK, Nouazli had acquired 28 criminal convictions for 48 offences. The last conviction led to a sentence of 23 months’ imprisonment. Attempts to deport him failed in 2007. Yet he continued to reoffend and was sentenced to 20 weeks’ imprisonment for an offence of theft committed on 25 January 2012. Pending decision-making on whether or not to deport him, he remained in detention after completing his custodial sentence. Pursuant to regulation 24(1) and Schedule 3 of the Immigration Act 1971, he was in detention between 3 April 2012 until 6 September 2012 and also from 7 September 2012 until 2 January 2013. On 6 June 2012, he was intermittently released on bail subject to a reporting restriction and an electronic curfew. Yet because of a new decision of 7 September 2012 to deport him pursuant to the 2006 Regulations, and Eder J found him to be “detained on bail” under regulation 24(3) until 2 January 2013. His appeal arising out of the fresh decision of 7 September 2012 resulted in the tribunal yet again finding that deporting him would violate EU law because the threshold for the expulsion of a permanent resident was unmet.

Lord Carnwath of Notting Hill observed at para 100 that “the period of actual detention” in question “therefore lasted little over two months.” Noting that “an administrative muddle” (as is the generally the case in everything connected to the home office) over the application of detention powers was not an issue for consideration, he showed sympathy with the government “running out of patience” with Nouazli’s pattern of offending because the jail terms of his petty crimes added up to at least five years.

On 3 April 2012, the day he was due to be released from custody for last offence which led to a sentence of 23 months’ imprisonment, Nouazli was notified – but offered no detailed reasons – of the home secretary’s intention to make a deportation order against him under the 2006 Regulations because he posed “a genuine, present and sufficiently serious threat to the interests of public policy”.

Nouazli challenged the lawfulness of his detention pending removal by way of judicial review on the basis that detaining him infringed article 27(1) of the Citizens’ Directive. However, no challenge was mounted on the grounds of unreasonableness or irrationality within the parameters set by the historic decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Instead he argued that the power to detain under regulation 24(1) of the 2006 regulations was discriminatory on grounds of nationality contrary to article 18 of the TFEU since there was no equivalent power in relation to a third country national.

The Supreme Court

The justices not only turned down an invitation to make a preliminary reference to the CEJU, but they also held that Nouazli’s pre-decision detention was not unlawful.

With reference to articles 27 and 28 of the Citizens’ Directive, Lord Clarke came to the view – Lord Neuberger (President), Lady Hale (Deputy President) Lord Carnwath and Lord Toulson concurring – that “powerful protections” were afforded to EU nationals in relation to expulsion because they can only be removed in limited circumstances; for example, where grounds of public policy, public security or public health arise. “One of the ironies of this appeal,” for Lord Clarke of Stone-cum-Ebony was that irrespective of the judicial review application having been dismissed at first instance and on appeal, Nouazli raised a number of fresh issues but did so without the objection of the home department. The fact that Nouazli did not “focus on his particular circumstances” was considered to be a “striking feature” of his case, which was “put at the highest level of abstraction”. Yet he submitted that the legislation – the key provisions being regulation 24(1) and (3) of the 2006 Regulations – concerned was invalid and argued for it to be disapplied in each and every case and in all circumstances.

Early on in his judgment, Lord Clarke juxtaposed the immigration regimes for EU nationals and the rest of the world. Highlighting the importance of the Directive’s “true meaning and effect” and the vitality of the CJEU’s jurisprudence, his Lordship emphasised:

21. By contrast, those exercising EU law rights … enjoy extensive additional rights, no doubt as a means of promoting the internal market, including the market for labour, as given effect in UK law. By section 7(1) of the Immigration Act 1988, people with directly effective EU rights to enter or remain in the UK, or who enjoy such rights by virtue of any provision made under section 2(2) of the European Communities Act 1972, do not require leave to enter or remain.

Article 18 of the TFEU and Discrimination

Nouazli complained that the power in regulation 24(1) to detain is contrary to article 18 of the TFEU. At least in theory, the superiority of the rights of EU nationals and their third country national family members was acknowledged by the court and it said at para 23 that persons “exercising EU rights have much greater rights”. On the other hand, the court rejected the argument that regulation 24(1) discriminates without lawful justification against EEA nationals and their family members.

Applying the CJEU’s decision in Vatsouras and Koupstantze v Arbeitsgemainschaft (AGRE) Nurnnerg (Joined Cases C-22/08, C-23/08), Lord Clarke held that the general principle in respect of article 18 TFEU only concerns the way in which EU citizens are treated in member states other than their states of nationality, and not the way in which member states treat nationals of other countries residing within their territories. His analysis also drew upon other domestic and international authorities such as Martinez Sala v Freistaat Bayern (Case C-85/96), Moustaquim v Belgium (1991) 13 EHRR 802 and Ponomaryov v Bulgaria 59 EHRR 20 (see discussion linked to Tigere [2015] UKSC 57). It was clear that third country nationals are inappropriate comparators for testing discrimination, which is simply a function of the limited scope of the EU legal order into which third country nationals do not fall.

Lord Clarke found further weaknesses in Nouazli’s case because of extra-judicial observations made by Professor Sir David Edward QC in Edward and Lane on European Union Law (2013) at para 8.02. Sir David, a former UK judge at the CJEU, pithily argues: “Discrimination against third country nationals is not prohibited. It is presumed, and indeed expected, that they will be treated differently.” Thus in light of the decision in Bhavyesh [2012] EWHC 2789 (Admin) – where Blake J dismissed an abstract challenge on grounds that the pre-entry tests amounted to less favourable treatment towards British citizens or their spouses compared with a comparative class by reference to EU law, “fatal to the [instant] appellant’s discrimination case” – the Supreme Court held:

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.

The court disagreed that there was discrimination between EU nationals and third country nationals violating article 21(1) of the EU Charter of Fundamental Rights. Nouazli’s representatives submitted that two forms of discrimination (i.e. under the CFR and TFEU) arose and required justification, to which the Vatsouras principle did not apply. However, citing the doctrine in NS v Secretary of State for the Home Department (Case C-411/10) at para 119 – that the CFR reaffirms EU rights, freedoms, and principles recognised making them more visible but does not create new rights or principles – Lord Clarke discerned that article 24(1) of the CFR contains a specific application of the principle of non-discrimination on grounds of nationality contained in article 18 TFEU and he held:

51. … It makes clear that the relevant comparators for the purposes of the Directive are the nationals of the host member state but does not include and is not concerned with discrimination as regards third country nationals who fall entirely outside the scope of EU law.

In relation to regulation 24(1)’s discriminatory nature, an argument was mounted for the legitimacy of considering the EU spouse’s position, regardless of whether or not she has brought a claim herself “because any adverse effects on third country spouses interfere with the EU national’s own free movement rights.”

Lord Clarke was unimpressed by the insertion of belated points arising out of Surrinder Singh (Case C-370/90) in an eleventh hour note, garnishing an assortment of supplementary authorities submitted shortly before the hearing by Nouazli, and the court found it “unfortunate” that the argument was not orally aired “in any detail” or addressed by the home office. Necessity regarding a conclusion on the scope and implications of Surrinder Singh might have required further submissions including submissions on the possibility of a reference.

Nouazli sought to develop a new argument that discrimination occurs between British nationals and EEA nationals (exercising treaty rights) who each have third country spouses, since the spouse of the EEA national who is liable to be detained might be hypothetically deterred from exercising their own free movement rights. Lord Clarke rejected the idea that Singh was able rely on the fact that the free movement rights of his EEA spouse might be affected hypothetically by restrictions placed on his own movements, and to continue to do so even after any connection had ceased.

Far from regulation 24(1) being invalid in “each and every case” as contended by Nouazli in light of the “seminal” authority of Surrinder Singh, it was held at para 58 “that the decision has no direct bearing on this case.” Reliance placed in para 19 of Surrinder Singh did not twist the outcome of the appeal in Nouazli’s favour. It was clear that his estranged French wife was not a party to proceedings as she had exited the UK in 2005. Lord Clarke observed that in Surrinder Singh the submission that Mrs Singh’s rights turned on domestic law was rejected as the CJEU found at para 23 that free movement rights under Community law were at stake. So “no conceivable basis” existed to hold that “any actual or hypothetical rights” of Nouazli’s ex-wife were affected by his detention for a few months in 2012. No dispute existed that regulation 24(1) must be applied proportionately; it was not argued that it was applied disproportionately in this case and the court failed to “see how it can be said that the regulation is itself disproportionate.”

Detention: Time Limits and EU Law

Addressing the question whether the absence of a time limit rendered Nouzali’s detention unlawful under EU law, Lord Clarke said Hardial Singh requires both the home office and the courts to take a fact sensitive approach to the length of detention. (Thus forming a full code to deal with immigration subjects’ deprivation of liberty.) He found in place a clear statutory framework, which involves appropriate judicial scrutiny. Invoking Lord Thomas CJ’s approach in Fardous [2015] EWCA Civ 931 the Supreme Court deprecated using “tariffs or yardsticks” quite simply because:

Each deprivation of liberty pending deportation requires proper scrutiny of all the facts … in accordance with the Hardial Singh principles. Those principles are the sole guidelines.

The Hardial Singh approach was held to be entirely consistent with European law. More directly on the subject of the attack made against the robustness of the principles articulated in Hardial Singh, Lord Clarke sequentially dissected the case law of the CJEU and the ECtHR. To amplify his conclusions he trawled through numerous cases and recalled that in Kambadzi [2011] 1 WLR 1299 his distinguished colleague Lord Kerr found the Hardial Singh principles to be “more favourable to detainees than Strasbourg requires.” The effects of historic Strasbourg cases such as Chahal v United Kingdom (1996) 23 EHRR 413 (concerning a Sikh separatist/“terrorist” campaigning for the independence of Khalistan) and Saadi v United Kingdom (2008) 47 EHRR 17 was revisited by the Supreme Court.

In Chahal, it was held that in the absence of reasonably diligent prosecution of deportation proceedings detention ceases to be permissible under article 5(1)(f). Though it was not suggested that the lack of a specified time limit rendered the detention unlawful, the ECtHR held the factual matrix of the case lead to article 5(1)(f)’s satisfaction. Moreover, in Saadi, the ECtHR made an explicit link between the notion of arbitrariness and the length of detention and the Grand Chamber remarked: “To avoid being branded as arbitrary … the length of the detention should not exceed that reasonably required for the purpose pursued.” For the majority, detention pursuant to article 5(1)(f) – i.e. “to prevent” a person “effecting an unauthorised entry” – would not be arbitrary if it (i) was carried out in good faith (ii) genuinely prevented unauthorised entry (iii) was conducted in an appropriate place where conditions of detention were suitable for an asylum claimant and (iv) was not excessive as regards the purpose pursued.

To Lord Clarke’s mind, nothing in the Strasbourg jurisprudence supported the view that mandatory time-limits are a necessary component of the “quality of law” for the purposes of article 5(1)(f) or otherwise a general requirement of that provision. Indeed, in JN the ECtHR quoted at length from para 71 et seq of Lord Clarke’s analysis. Emphasis was equally supplied to his Lordship’s earlier observations at para 61 regarding the courts’ recognition of “sound policy reasons for a flexible and fact-sensitive approach.”

Despite the canonical nature of Hardial Singh, a detailed appraisal of the Strasbourg jurisprudence – in the form of half a dozen Turkish cases, a Greek case and Maltese case – partially pointed the other way. Lord Clarke did not quarrel with the burdens created by potentially indefinite detention and at para 72 he remarked “this is not to say that the absence of time limits is not a relevant factor in deciding in a particular case.” But none of the highlighted cases were readable as impeaching the government’s case because reflecting on the Supreme Court’s formulation of Hardial Singh in Lumba, in Tabassum v United Kingdom the ECtHR held the applicant’s period of detention “did not exceed what was reasonable in all the circumstances of the case and was not arbitrary”. As seen in Abdolkhani and Karimnia v Turkey [2009] ECHR 1336, detention pending deportation is objectionable only where a robust procedure capable of avoiding the risk of arbitrary detention is missing. As seen above, the Supreme Court held that the UK has a clear statutory framework, which, unlike less democratic nations, involves proper judicial scrutiny.

Lord Clarke did not hesitate in rejecting the five arguments used to discredit Hardial Singh and found that the test of reasonable foreseeability was inappropriate. Disagreeing with the submissions put to him, his Lordship held that facilitating deportation is precisely the purpose of regulation 24(1) detention even if no final decision has been made. Moreover, arguing that the Hardial Singh principles only apply ex post facto was misconceived. Furthermore, it was equally wrong to argue that a lack of legal certainty may amount to a restriction on free movement – that too on the basis of the CJEU’s decision in the tax, and not detention, related case of Safir v Skattemyndigheten i Dalarnas Län (Case C-118/96). The Supreme Court accepted the home secretary’s argument that the Safir judgment gave no reason to presume that EU law was more demanding than the ECHR.

Finally, rather than accept the argument that lack of legal certainty can be overcome by national courts interpreting measures compatibly with EU law, Lord Clarke much preferred the official position which insisted that the Hardial Singh guidelines “form part of what has been accepted by European courts as meeting the requirements imposed by law.”

Transposition of Safeguards

As for the contention that regulation 24 fails to transpose the safeguards contained in articles 27 and 28 of the Directive, the “short answer” was that the former (national) provision “is not free-standing” in nature. In other words, the detention power under regulation 24 is ancillary to the powers of removal in the circumstances permitted by regulation 21 and it correctly transposes articles 27 and 28. The existence of a belief for a case to remove makes it “clearly appropriate” for the authorities to have detention powers under the provisions concerned while the case is under consideration. As observed at para 55 of Lumsdon v Legal Services Board [2015] 3 WLR 121, it was clear the margin of appreciation under the Citizens’ Directive available to the national authorities allowed the creation of such a power in the event it was suitable and proportionate to its purpose and reasonably exercised.

No basis existed to find the regulations disproportionate. The decisions involved were not claimed to be disproportionate or arbitrary on the facts and Lord Clarke held:

81. … It is not necessary to show that a decision under regulation 24 is itself an “EEA decision” within the meaning of article 2. It is enough that it is directly linked to regulation 19(3)(b) which in turn is made expressly subject to regulation, and hence to requirements equivalent to those in the Directive.

Properly understood, the power to detain under regulation 24 is not freestanding. Rather, it is purely ancillary to the powers of removal in the circumstances permitted by regulation 21, which properly transposes articles 27 and 28.

New Point

The court went on to hold that the CJEU’s decision in JN v Staatssecretaris van Veiligheid en Justitie (Case C-601/15 PPU) – a different case from the ECtHR’s decision in JN discussed above which held that the UK’s system of immigration detention does not, in principle, breach article 5 of the ECHR – considered purely on written arguments subsequent to the actual hearing did no change anything. The CJEU case of JN turned on Directive 2013/33/EU relating to standards for the reception of applicants for international protection and could therefore be distinguished. Nouazli accepted Directive 2013/33/EU is non-binding on the UK and Lord Clarke held it to be materially different to the Citizens’ Directive as it includes an express freestanding power of detention for persons claiming international protection, and not detention pending a deportation decision.

Comment

On the subject of the highly controversial ruling in PJS [2016] UKSC 26, which seems to favour the rich, labelling himself a “bad prophet”, Lord Lester of Herne Hill QC drew the analogy of the Supreme Court “burning down the house to roast the pig.” But in comparison to that case, it can perhaps be said that the outcome in Nouazli did not expose the justices to the “risk of looking foolish”. Although they dismissed the appeal, the justices did well to hear a poor Algerian barber’s case so as to ensure that his legal complaints/grievances were properly addressed.

With the EU Referendum hanging over the UK’s head, some people might even say that the Supreme Court sought to pacify the Leave campaign because – after the economic and security related concerns aired by the BoE, the IMF, the Obama administration and the chancellor/PM etc – immigration is the only area capable of galvanising support for Brexit. However, a deep reading of the judgment leaves the reader with a sense that the justices were accommodating of the creative arguments put to them but felt that they had to put their foot down about how far human rights and EU law can be stretched to please petty foreign criminals.

Though Theresa May has defended the government’s record and performance, an important report published on 3 June 2016 by the House of Commons Select Committee on Home Affairs has concluded that the home office has failed in deporting 13,000 foreign offenders (the equivalent of a “small town”) because of EU law. The report also warns that a “modern miracle” is required to achieve the savaged/“waffling” prime minister’s “no ifs, no buts” promise to reduce net migration to the tens of thousands.

Citing a record number of “deport first, appeal later” expulsions under the “flagship” Immigration Act 2014, May claims the UK’s membership of the EU does not obstruct enforcement actions and processes but the report is extremely critical of the government and lambasts it for wasting time and money and undermining public confidence in the immigration system. Yet in juxtaposition with those findings, ultimately, EU law seemed to be quite hopeless in the circumstances of this case and like the Vietnamese jihadist Pham [2015] UKSC 19 (see here) it totally failed the “nuisance” Algerian criminal Nouazli.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Algeria, Article 3, Article 5, CFR, Citizens Directive, CJEU, Deportation, Detention, ECHR, European Union, Immigration Act 2014, Judicial Review, Proportionality, UKSC and tagged , , , , , , , , . Bookmark the permalink.

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