Nakrasevicius, R (on the application of) v Secretary Of State For The Home Department

Immigration detention may be used only for the purpose of effecting or ensuring deportation. It must not be used, even partly, for an auxiliary purpose such as allowing confiscation proceedings to continue, where the criminal court has its own powers to protect those proceedings.

Where detention is challenged by judicial review, the court applies the modified American Cyanamid test. Mandatory interim relief requires a strong prima facie case. The Hardial Singh principles may be strongly arguable where detention has already exceeded a reasonable period or removal has no realistic prospect within a reasonable time. The High Court may order release and Schedule 10 accommodation where liberty strongly outweighs the public disadvantage and accommodation is necessary to make release effective.

The claimant, a Lithuanian national, had been detained under immigration powers after completing a sentence of imprisonment. He had expressed a wish to return to Lithuania and had withdrawn his EU Settlement Scheme application, but confiscation proceedings under the Proceeds of Crime Act 2002 remained pending.

He sought interim judicial review relief requiring his release and the provision of accommodation under Schedule 10 to the Immigration Act 2016. The issues were whether detention was being used for an improper purpose, whether the period and prospective duration of detention breached the Hardial Singh principles, whether judicial review was appropriate despite the possibility of First-tier Tribunal bail, and whether accommodation should be provided.

1. Interim test. The court applied the modified American Cyanamid test. Because the relief sought was mandatory, the claimant had to establish a strong prima facie case. The claimant satisfied that threshold.
2. Improper purpose. The detention power could be used only for effecting or ensuring deportation. It could not be used for an auxiliary purpose, including keeping the claimant in the United Kingdom so that confiscation proceedings were not frustrated, even though the Secretary of State ultimately intended to deport him. The reasoning in R (Ibori) was a close analogue, and HXA supported the same conclusion.
3. The court expressed no view on whether confiscation proceedings could lawfully prevent removal if the Crown Court itself decided that the claimant had to remain within the jurisdiction. The Crown Court had power under section 41 of the Proceeds of Crime Act 2002 to make effective restraint orders, including restrictions on travel.
4. Hardial Singh principles. Even assuming detention could be maintained to avoid frustrating the confiscation proceedings, there was a strongly arguable breach because a reasonable period had expired and there was no realistic prospect of removal within a reasonable period. The proceedings had no clear end date, and two authorising officers had recommended release.
5. Judicial review was appropriate. Although First-tier Tribunal bail might ordinarily provide an alternative remedy, it could not determine the improper-purpose challenge, and it would be artificial to split the related grounds between two fora.
6. Relief. The claimant’s release was ordered within seven days of the hearing. Accommodation under Schedule 10 to the Immigration Act 2016 was also ordered pending the Crown Court’s consideration of whether funds could be released, since release without accommodation appeared likely to leave him homeless and without money.