Lauzika, R (On The Application Of) v Secretary of State for the Home Department

Immigration detention of an EEA national under regulation 24 of the Immigration (European Economic Area) Regulations 2006 must satisfy the individualised proportionality and necessity standards in Article 27.2 of Directive 2004/38/EC. Those standards govern the exercise of the detention power against the individual, not merely the existence of the power or the linked deportation decision.

Urgent initial detention may be lawful where limited information creates real grounds for concern, but continued detention requires the Secretary of State to obtain and consider fuller information about the individual’s conduct, circumstances and risk with imperative urgency. A material public law breach in a distinct decision renders detention unlawful where the decision and breach bear on the detention. Hardial Singh Principle 3 may provide an additional safeguard where removal is no longer realistically achievable within a reasonable time.

The claimant, a Lithuanian EEA national, challenged his executive immigration detention between 27 January and 29 April 2015. Detention followed a custodial sentence for possession of an imitation firearm and intended deportation action. He was released on bail by the First-tier Tribunal.

The claim concerned the legality of four stages of detention. The principal issues were whether Article 27.2 standards applied directly to detention, whether public law errors in distinct decisions could invalidate detention, and whether the detention complied with the Hardial Singh principles. The claimant also challenged the certification of removal pending appeal and the refusal of section 4 accommodation.

1. Article 27.2 standards. Detention under regulation 24 of the Immigration (European Economic Area) Regulations 2006 attracts the Article 27.2 standards. Proportionality and necessity govern the individual detention decision, not merely the statutory power or deportation decision. Previous convictions cannot themselves justify detention. The Secretary of State must consider the individual’s conduct, circumstances and assessed threat.
2. Stages 1 and 2. Detention during the first 24 hours was lawful despite the limited information available, because the circumstances required urgent protective action and the Secretary of State recognised the need for further information to be obtained urgently. Continued detention from 28 January to 25 February 2015 was unlawful. The available material did not provide legally adequate individualised justification, and the Secretary of State had not urgently obtained available information such as the pre-sentence report. Later material could not retrospectively justify the detention.
3. Stages 3 and 4. Detention from 25 February to 9 April 2015 complied with Article 27.2. The Secretary of State had fuller information and had objectively assessed the risks of absconding, reoffending and harm. Alternatives to detention had been considered.
4. Distinct decisions. A material public law breach in a decision distinct from the detention decision renders detention unlawful where the decision and breach bear on the detention. The defective certification decision bore on detention because it affected the prospect and timing of removal. However, the misdirection was immaterial: certification would inevitably have been lawful on a correct approach. The section 4 refusal was also immaterial because the refusal of temporary release did not depend on the absence of an address and would inevitably have been the same.
5. Hardial Singh Principle 3. Detention from 9 April to 29 April 2015 breached Principle 3. By 9 April, judicial review of the certification was a barrier to removal, and the Secretary of State had failed to secure expedition. There was no longer a realistic prospect of removal within a reasonable time.
6. Declarations and damages. Detention from 27 to 28 January was unlawful for failure to provide reasons, but only nominal damages were recoverable. Detention from 28 January to 25 February and from 9 to 29 April was unlawful, with compensatory damages recoverable. Detention from 25 February to 9 April was lawful.

First-instance judicial review proceedings. The judgment records no prior appellate decision in the present litigation.