Lauzikas, R (on the application of) v Secretary of State for the Home Department

Article 27(2) of the Citizens Directive permits initial administrative detention of an EEA national in urgent public-security circumstances where the decision is individualised, proportionate and based on personal conduct, even if limited information is available. Fuller information must be obtained within a reasonable time, which may be very short. There is no separate legal test of imperative urgency. Continuing detention is unlawful if the information needed to justify it is not obtained promptly. Damages remain compensatory: where lawful detention would have continued had the information been obtained at the proper time, only nominal damages are recoverable. Under the Hardial Singh principles, detention also requires a reasonable prospect of deportation and reasonable diligence; failure to seek expedition of necessary judicial review proceedings may make continued detention unlawful.

The appellant, a Lithuanian EEA national, was detained after receiving a sentence which permitted his immediate release from custody. The Secretary of State detained him under the Immigration (European Economic Area) Regulations 2006 while considering deportation.

The Deputy High Court Judge held that the first day was unlawful because reasons were not given, although detention was substantively permissible; that detention during the second period was unlawful; that the fourth period was lawful; and that the fifth period was unlawful. Appeals concerned the first, second and fourth periods, including Article 27(2), damages, and the Hardial Singh principles. The central issues were whether the initial and continuing detention was justified and whether deportation remained reasonably achievable during the fourth period.

1. Stages 1 and 2. The first day was unlawful because reasons for detention were not given. However, the Secretary of State discharged the burden of showing that the substantive decision satisfied Article 27(2) standards. Initial urgent action may be lawful despite limited information if it is individualised rather than automatic, proportionate, and based on the person’s conduct. Fuller information must then be obtained within a reasonable time. The court rejected imperative urgency as an inappropriate phrase and as a separate legal test. In an EEA detention case, the reasonable period may nevertheless be very short.
2. The Secretary of State failed to obtain the pre-sentence report, OASys assessment and sentencing remarks promptly. Those materials were available to the state or could have been obtained within 24 hours. Continued detention from 28 January to 25 February was therefore unlawful. The damages issue was separate. Following R (Lumba) (Congo) v SSHD [2012] 1 A.C. 245, damages are compensatory, not disciplinary or vindicatory. The question was what the Secretary of State would have done if the correct information had been available at the proper time. Since lawful detention would have continued, only nominal damages were recoverable. R (Das) v SSHD [2014] 1 WLR 3358 provided an apt analogy.
3. Stage 4. The Hardial Singh principles, derived from R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 and reiterated in R (Lumba) (Congo) v SSHD, required a reasonable prospect of deportation within a reasonable period and reasonable diligence and expedition. Once removal directions were cancelled pending judicial review, the proceedings were unlikely to conclude within a reasonable time unless expedition was sought and granted. No expedition application was made. The fourth period of detention was therefore unlawful and substantial damages were appropriate.
4. An appellate court will normally respect the trial judge’s evaluation of the Hardial Singh principles, as recognised in R (Muqtaar) v SSHD [2012] EWCA Civ 1270. Here intervention was justified because the judge had not taken sufficient account of the improbability of a timely determination without expedition. The application to adduce a later PNC record was refused. Stage 1 was upheld, stage 2 remained unlawful but attracted nominal damages, and stage 4 was held unlawful with substantial damages to be assessed.

• Court of Appeal (Civil Division), [2019] EWCA Civ 1168: upheld the substantive conclusion on stage 1, upheld unlawfulness during stage 2 but substituted nominal damages, and reversed the decision on stage 4, awarding substantial damages to be assessed.
• High Court, Queen’s Bench Division, Administrative Court, [2018] EWHC 1045 (Admin): held stage 1 unlawful because reasons were not given, stage 2 unlawful, stage 3 lawful, stage 4 lawful and stage 5 unlawful.