Supreme Court sets boundaries of EU discrimination law for freedom of movement

20 Apr 2016

In R(Nouazli) v Secretary of State for the Home Office [2016] UKSC 16, the Supreme Court has rejected a challenge to powers which enable persons exercising free movement rights to be detained, pending a decision whether to remove them from the United Kingdom.  Tim Ward QC acted for the Secretary of State.  The case contains an important statement of principle as to the scope of EU discrimination law.

Regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 permits the detention of person exercising EU free movement rights, if there are reasonable grounds to suspect he is a person who may be removed on (inter alia) public policy grounds. The Appellant was an Algerian national who had formerly been married to a French national, and accordingly enjoyed a right of residence in the UK as an EU family member. He argued that Regulation 24(1) gave rise to discrimination, as no equivalent “pre-detention” power existed in the UK immigration regime which applied to those who were not exercising EU law rights.  The Supreme Court rejected this argument, holding that third country nationals are not an appropriate comparator for testing discrimination in EU law: such “discrimination” is simply a function of the limited scope of the EU legal order.  Nor was such discrimination contrary to the Charter of Fundamental Rights.

The judgment is accordingly of considerable importance in defining the scope of application of EU discrimination law.

The full judgment is available on the Supreme Court’s website (here).