The Centre for Advice on Individual Rights in Europe v The Secretary of State for the Home Department (First Defendant) The Commissioner of Police of the Metropolis (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan |
| Judgment Date | 21 July 2017 |
| Neutral Citation | [2017] EWHC 1878 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2017 |
| Docket Number | Case No: CO/2992/2016 |
[2017] EWHC 1878 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice McGowan
Case No: CO/2992/2016
— and —
Dan Squires QC (instructed by Deighton Pierce Glynn) for the Claimant
Jonathan Swift QC and Christopher Knight (instructed by Government Legal Department) for the FirstDefendant
Julian Milford (instructed by Directorate of Legal Services) for the Second Defendant
Hearing date: 3 May 2017
Approved Judgment
INTRODUCTION
The Claimant is a law centre and registered charity which seeks to promote awareness and enforcement of the EU and ECHR rights of individuals who require its assistance. There is no issue as to its standing in these proceedings. The first Defendant is the Secretary of State for the Home Department, ("SSHD"). The SSHD has responsibility for the enforcement of immigration law and policy. She introduced Operation Nexus, the subject of this challenge, in November 2012. Its implementation is carried out through the Home Office's Enforcement Directorate and the Metropolitan Police Service in London, ("MPS"), the second Defendant.
All parties have submitted clear and concise written skeleton arguments which informed oral argument and have enabled a distillation of the issues in a judgment that is shorter than might otherwise have been required.
On 21 September 2016 Blake J refused permission on all grounds. The application for permission was renewed and granted after an oral hearing before Dove J on 9 November 2016.
The claim was originally brought on four grounds. Ground 2 which complained of a lack of clear public explanation or public policy 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.
Ground 1 asserts that the implementation of Operation Nexus is in breach of Article 14(2) of the Citizens' Directive and Ground 3 asserts an improper use of police powers to gather information for the purposes of immigration removal.
BACKGROUND
Operation Nexus has three strands or elements; only the first of these strands is the subject of this challenge:
i) Nexus Custody.
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 Immigration (European Economic Area) Regulations 2006 (SI No. 2006/1003) ("the 2006 Regulations") generally provide for the right of residence of EEA nationals in the UK and implement the "Citizens' Directive" 2004/38/EC.
Any arrested person is normally taken to a police station. In all cases, they are asked for basic information under the provisions of the Codes under the Police and Criminal Evidence Act 1984 as to their name, address and date of birth. Code C requires a police officer to enquire about an arrested person's nationality. Under Operation Nexus, all foreign nationals are asked questions about their personal circumstances relevant to their immigration status. It is the application of this process to citizens of the European Economic Area, ("EEA"), that is challenged. Under Operation Nexus, Custody EEA nationals are further questioned, by an IEO or a police officer, about their personal circumstances and the exercise of their EU treaty rights to reside in the UK.
Citizens of the member states of the EEA have the right to reside in other member states, subject to certain conditions. 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.
It is the questioning of EEA nationals in these circumstances which forms the basis for this challenge. The list of questions to be asked under Operation Nexus has been provided by the first Defendant to the second Defendant. Not all questions on the list are asked in every case but in general terms they include requests for information about the date of entry into the UK, employment status, financial means and whether the individual is in a family relationship with another or others who have a right of residence. The purpose of asking these questions does not form any part of the investigation of the alleged criminal offence for which the individual has been arrested. The questions are not asked under the terms of the caution given to persons questioned under the investigation of criminal offences. The questions are asked irrespective of whether the individual is to be charged with any criminal offence.
The completed form is signed by the IEO or police officer and the arrested person. That information is then checked against information on the data base held by the CCU. That check may be determinative or it may not. The decision to take further immigration action is taken by an IEO and not a police officer. If the IEO considers there is reasonable doubt as to whether treaty rights are being exercised s/he may call the individual for an interview and/or to provide evidence under Regulation 20B(2) of the 2006 Regulations.
MATERIAL PROVISIONS
All states are required to provide equal treatment of their own citizens and other member states' citizens residing in that state under Article 24(1) of the Citizens' Directive:
"Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence."
Article 14 of the Citizens' Directive, which is implemented by Regulation 20B of the 2006 Regulations states:
"1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.
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 .
3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.
4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:
(a) the Union citizens are workers or self-employed persons, or
(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged."
Regulation 20B "Verification of a right of residence" provides:
"(1) This...
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