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New challenge to Theresa May’s ‘hostile environment’ and the unlawful deportation of EU nationals

20 April 2018

AIRE centre director Matthew Evans blog post on challenge to Theresa May's 'hostile environment' and Operation Nexus

The detention and expulsion of EU citizens from the UK is a developing trend; one that should concern not just EU nationals but anyone who considers that the UK ought to respect international treaty obligations into which it has entered in the exercise of its sovereign power.

The Home Office policy and practice regarding the detention and expulsion of EU citizens displays scant regard for the EU Treaties, the need to give effect to their object and purpose, or for the rights that arise under them. It empties the content out of EU Citizenship and of rights of free movement, by militating against both and confining them in an over-determined system of immigration control which seems contrary to EU law.

The “Windrush” scandal and fallout extends way beyond issues for the citizens from former British colonies—it has re-ignited legitimate concerns from EU officials and  a great degree of fear amongst EU citizens, about how they and their rights will be secured and looked after post Brexit.

Operation Nexus
The AIRE centre is bringing a legal challenge in the Court of Appeal against one of the most invidious of these policies. The case is due to be heard in July this year.

Operation Nexus, is a little known joint police and Home Office initiative, that allows people to be deported from the UK without any convictions. Initially framed as targeting ‘High Harm’ foreign national offenders, Nexus has evolved, now classifying people as foreign national offenders based on ancient, spent and petty convictions, as well as ‘non-convictions’ such as police encounters, acquittals and withdrawn charges. In 2014 the government admitted it had left it up to individual police forces to define ‘high-harm’

Operation Nexus, first launched in London in 2012, is part of creating what Theresa May, as home secretary, has called a ‘hostile environment’ towards ‘illegal’ or undesired migrants including EU nationals.

The purpose of Operation Nexus is gathering information, not to conduct a criminal investigation but to identify individuals, even if they have committed no criminal offence, who could be deported. It involves the immigration status of foreign nationals being checked, the AIRE Centre argues systematically, and being questioned by the police for non-police purposes and without any of the normal procedural protections.

EEA nationals encountered by the police are asked questions designed to determine whether they are exercising EU Treaty rights (for example how they are supported financially, if they are working, how much they earn, whether they are in a relationship, who pays for their accommodation).

Since 2012 over 3,000 people have been removed under Operation Nexus. Statistics (obtained through a Freedom of Information request) show that EU Citizens targeted have tended to be from Poland, Romania and the Baltic States, that joined the EU in 2004 and 2007. Many of these EU Citizens are vulnerable, either economically or due to being the victims of organised crime (women trafficked to the UK for the purposes of sexual exploitation).

Take the case of Christina (not her real name), a woman who came to the UK following her sentence for being a drug mule – something she says she was forced into by traffickers. To get away from her traffickers, she came to the UK to start a new life, but found things very difficult, and contemplated suicide. She was seen by passer-by on a London bridge who, concerned about her welfare, called the police. When the police arrived however she was taken to a nearby police station, and the fact that she was an EU national brought her to the attention of the Home Office. They discovered her earlier conviction, and she was subsequently detained at the notorious Yarls Wood immigration detention centre awaiting her deportation. Even after she was granted immigration bail, the Home Office banned her from working, so she had no income and could not pay her rent. She was threatened with eviction and forced to rely on food banks. Eventually she won her deportation appeal, as both someone who was a recognised victim of trafficking and as someone who did not represent a risk in the UK

Despite concerns about the legality of Operation Nexus, the lack of transparency in how it operates in practice, and who it is supposed to target, Nexus has now been rolled out to the Midlands, Manchester, Hampshire, Avon and Somerset, and Sussex. More widely, allowing police the power to carry out checks, even where there is no reasonable suspicion of a criminal offence being committed, should alarm us all.

Our challenge is based on two grounds;

  1. Nexus involves the systematic verification of all EEA citizens arrested and in custody and whether they are exercising EU Treaty Rights. This is irrespective of whether there is a “reasonable doubt” to the contrary. We argue this is contrary to EU and UK law.
  2. Nexus involves Police Officers interviewing individuals, including those in police custody, without the right to a lawyer (or the any of the other usual protections available under PACE). We believe that this is draconian and unlawful.

 The AIRE Centre is acting pro bono with the assistance of Deighton Pierce Glynn and counsel from Matrix Chambers. We have a protected costs order which limits our costs of the legal challenge to a fixed figure. However, as a charity, we must raise money to meet that figure because we do not have sufficient resources of our own. Without this help, we will simply not be able to continue bring this important legal challenge.

We need to raise £11,000 to make it possible. Initially we are raising £6k to cover costs but eventually we need the full amount, so we need your help. You can support this legal challenge through Crowd Justice here.

This blog post first appeared in Justice Gap and can be found here.

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