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

Imprisonment in a foreign jurisdiction may interrupt the continuous residence required for permanent residence under the EEA Regulations. A tribunal’s unchallenged findings on residence are not necessarily conclusive where material information was absent from the tribunal’s consideration. An in-country application to revoke a deportation order is unavailable where the statutory scheme requires an out-of-country application based on a material change of circumstances. Immigration detention becomes unlawful when there is no realistic prospect of removal within a reasonable period, despite reasonable efforts to secure removal documentation. The detention was lawful initially but became unlawful after the foreign authorities’ position made removal within a reasonable period unrealistic.

The claimant sought judicial review of his detention under immigration powers and of the Secretary of State’s refusal to revoke a deportation order. The deportation order had been made under the Immigration (European Economic Area) Regulations 2006 on public policy or public security grounds. The claimant argued that his long residence gave him the highest level of protection, that the deportation and revocation decisions were unlawful, and that his detention breached the Hardial Singh principles.

The court considered whether imprisonment in Belgium interrupted continuous residence, whether the claimant had the enhanced protection applicable to a person with permanent residence, whether the revocation application was procedurally valid, and whether continued detention remained justified in light of the prospects of obtaining an emergency travel document.

1. Time and residence. The court extended time for the judicial review. It held that imprisonment abroad could interrupt the continuous residence required to establish permanent residence. It would be illogical to treat imprisonment in a third state differently from imprisonment in the United Kingdom. The First-tier Tribunal’s earlier findings were not conclusive because they were based on a short judgment and unchallenged evidence, without consideration of the claimant’s foreign convictions and imprisonment.
2. Deportation. The Secretary of State was entitled to conclude that the claimant did not qualify for the additional protections under regulations 21(3) or 21(4) of the Immigration (European Economic Area) Regulations 2006. The issue of the highest level of protection under regulation 27(4) of the Immigration (European Economic Area) Regulations 2016 therefore did not arise. Alternatively, the claimant’s history of serious and repeated offending justified the conclusion that he represented a serious risk to the public and that the requirements for serious grounds of public policy were met, even if he had permanent residence.
3. Revocation. An application to revoke a deportation order had to be made from outside the United Kingdom and had to rely on a material change in circumstances since the order was made. The claimant remained in the United Kingdom and sought to challenge the original deportation decision rather than identify a material change. The refusal to revoke was therefore lawful.
4. Detention. The detention was lawful from 8 June 2017 to 25 September 2017. After the meeting with the Portuguese authorities in April 2018, and after a reasonable period to explore further options, there was no realistic prospect of removal within a reasonable period. The second Hardial Singh principle was therefore breached. The court regarded the claimant’s health as capable of management in detention, but that did not cure the absence of a realistic removal prospect.