R the Centre for Advice on Individual Rights in Europe v (1) The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Arden |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2837 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2018 |
| Docket Number | Case No: C1/2017/2655 |
[2018] EWCA Civ 2837
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT
MRS JUSTICE MCGOWAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Arden
Lady Justice Sharp
and
Lord Justice Coulson
Case No: C1/2017/2655
Dan Squires QC and Anita Davies (instructed by Deighton Pierce Glynn) for the Appellant
Jonathan Swift QC and Christopher Knight (instructed by Government Legal Department) for the First Respondent
Julian Milford (instructed by MPS Directorate of Legal Services) for the Second Respondent
Hearing date: 10 July 2018
Approved Judgment
This is the judgment of the Court, to which all members have contributed.
A. OPERATION NEXUS
(1) Overview of Operation Nexus
This appeal, from the order dated 21 July 2017 of McGowan J, dismissing the application for judicial review of the Centre for Advice on Individual Rights in Europe (known as The Aire Centre), concerns Operation Nexus. The respondents are the Secretary of State for the Home Department and the Commissioner of Police for the Metropolis (“the MPS”). Operation Nexus is an operational and intelligence partnership for immigration enforcement set up between the Home Office and the MPS. The aim of this partnership is said to be to improve the management of, and responsiveness to, foreign national offending in London. It applies in London and certain other parts of England and Wales.
Operation Nexus is designed to establish whether or not a foreign national who is detained is lawfully in the UK. Foreign nationals may be from countries all over the world and be entitled to reside here under visas and so on.
(2) EU nationals' right to reside
Nationals of other member states of the EU may be here because they are exercising “Treaty rights”, that is, their right as EU citizens as conferred by EU law to take up work in the United Kingdom and reside. But Treaty rights are not unqualified. For instance, under Article 7 of Directive 2004/38/EC (“the Citizenship Directive”) all EU citizens shall have the right of residence on the territory of another member state for a period of longer than three months if they: (a) are workers or self-employed persons in the host member state; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state during their period of residence and have comprehensive sickness insurance cover in the host member state; or (c) are students, with comprehensive sickness insurance and sufficient resources. So Article 7 lays down conditions which EU citizens must satisfy in order to be able to reside in the UK. These restrictions apply also to EEA nationals who are not EU citizens, and references below to EU nationals therefore include EEA nationals.
(3) Checking whether an EU national is entitled to reside in the UK
Operation Nexus is designed to check that foreign national offenders are entitled to be here.
However, the Citizenship Directive does not allow EU nationals to be needlessly pursued for information about their entitlement to reside in the UK. The steps which a member state may take to check an EU citizen's right to reside here are governed by Article 14(2) of the Citizenship Directive, which provides:
(2) Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.
In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.
Article 27(2) of the Citizenship Directive can be contrasted with Article 14(2). It provides for administrative removal where it would be contrary to public policy for an EU citizen from one member state to reside in another member state. Again, there is a prohibition in that Article on asking questions routinely, for example, of the member state of origin but there is no mention of having to show “reasonable doubt” first. This provides a measure of support for the view that Article 14(2) is designed to protect individuals from being harassed by requirements to produce information about their right to reside. Neither Article 14(2) nor Article 27(2) applies to persons who are not EU nationals.
The UK implemented Article 14(2) of the Citizenship Directive by Regulation 20B of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) (now re-enacted so far as material in Regulations enacted in 2016), which provides:
20B.—Verification of a right of residence
(1) This regulation applies when the Secretary of State—
(a) has reasonable doubt as to whether a person (“A”) has a right to reside under regulation 14( 1) or (2); or
(b) wants to verify the eligibility of a person (“A”) to apply for documentation issued under Part 3.
(2) The Secretary of State may invite A to—
(a) provide evidence to support the existence of a right to reside, or to support an application for documentation under Part 3; or
(b) attend an interview with the Secretary of State.
(3) If A purports to be entitled to a right to reside on the basis of a relationship with another person (“B”), the Secretary of State may invite B to—
(a) provide information about their relationship with A; or
(b) attend an interview with the Secretary of State.
(4) If, without good reason, A or B fail to provide the additional information requested or, on at least two occasions, fail to attend an interview if so invited, the Secretary of State may draw any factual inferences about A's entitlement to a right to reside as appear appropriate in the circumstances.
(5) The Secretary of State may decide following an inference under paragraph (4) that A does not have or ceases to have a right to reside.
(6) But the Secretary of State must not decide that A does not have or ceases to have a right to reside on the sole basis that A failed to comply with this regulation.
(7) This regulation may not be invoked systematically.
(8) In this regulation, “a right to reside” means a right to reside under these Regulations.
Regulation 14(1) (referred to in Regulation 20B) states that a “qualified person” is entitled to reside in the United Kingdom for so long as he remains a qualified person. Under Regulation 6, a “qualified person” means (with certain exceptions) an EEA national who is in the UK as a jobseeker, a worker, a self-employed person, a self-sufficient person or a student.
(4) Interaction between Article 14(2) and Operation Nexus
So Operation Nexus has had to take into account the requirements of the Citizenship Directive. The part of Operation Nexus which needs to be examined on this appeal is “the custody strand.” The custody strand deals with the identification of the immigration status of foreign nationals who have been arrested and are in custody. The custody strand has nothing to do with the decision to detain a person in the first place, save in the case of some offences with which this appeal is not concerned.
Under Operation Nexus, foreign nationals who have been arrested will routinely be asked questions, either by immigration officials or, if those officials are not available, by the police, about their nationality and about the basis on which they are exercising their Treaty rights. Immigration officers have provided the MPS with a list of questions which it might be useful for police officers to ask in this situation. The law does not require the detained individual to answer these questions, but at the same time it appears that no such person is routinely advised that he need not answer or that there is no sanction if he does not answer.
Any information which a detained person provides is checked against other information in the Secretary of State's control in order, in particular, to ascertain whether the person is subject to immigration control or is liable to enforcement action. It may turn out that there is no relevant information held by the Secretary of State, especially if the individual is exercising Treaty rights.
Michelle Louden, Assistant Director for Operations Nexus Custody Team, explains in her witness statement that questions may be put to an EEA national relevant to the reasons why that person is present in the UK. She further explains that, if the immigration officials are not satisfied about a foreign national's entitlement to reside, they may cause to be issued by the Home Office a “minded to remove” letter. This will indicate that the detained person is not considered to be entitled to reside in the UK, and invite him to attend an interview under Regulation 20B. If the immigration officer decides that the individual is not entitled to reside in the UK, he will seek approval for the issue of papers informing the individual of their liability to removal. There are a number of safeguards in that process, including a right of appeal.
B. THE ISSUES TO BE DETERMINED
The first issue we have to decide is whether the Judge was right to hold that the prohibition on systematic verification in Article 14(2) of the Citizenship Directive was not infringed by Operation Nexus.
That leads to the second issue, which is whether it is outside the police functions to ask those questions.
C. ISSUE 1: DOES OPERATION NEXUS INFRINGE ARTICLE 14(2) OF THE CITIZENSHIP DIRECTIVE?
(1) Submissions on the first issue
Mr Dan Squires QC, for the appellant, submits that...
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