R (on the application of Nouazli) (Appellant) v Secretary of State for the Home Department (Respondent)

Judgment was given on 20 April 2016 by the Supreme Court in this appeal on EU law issues concerning rights of beneficiaries of the Citizens Directive in the area of pre-deportation detention. EEA nationals may be detained under order of the Secretary of State while she determines whether they shall be deported while third country nationals, in general terms, may only be detained following a decision to deport.  Before the Supreme Court, the Appellant raised four essential points of challenge, namely that (i) the power to detain under the relevant regulations was discriminatory without lawful justification, (ii) the power was unnecessary and disproportionate, (iii) the absence of a time limit for detention infringed the Hardial Singh principle and (iv) the relevant regulations failed to accurately transpose the safeguards in articles 27 and/or 28 of the Citizens Directive. The Supreme Court dismissed the appeal holding that the appellant’s pre-decision detention was not unlawful. It further declined to make a preliminary reference to the CJEU. It held that the power to detain under the regulations did not discriminate without lawful justification against EEA nationals and their family members. Lord Clarke (giving the main judgment) held that the general principle is that Article 18 TFEU is only concerned with 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. Third country nationals are not appropriate comparators for testing discrimination: such “discrimination” is simply a function of the limited scope of the EU legal order, into which third country nationals do not fall. Nor is there discrimination between EU nationals and third country nationals contrary to article 21(1) of the EU Charter of Fundamental Rights.

Pushpinder Saini QC appeared on behalf of the Appellant.