R (Jonas Lauzikas) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Hickinbottom,Lady Justice Nicola Davies |
| Judgment Date | 09 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1168 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2018/1370 & C9/2018/1372 |
| Date | 09 July 2019 |
[2019] EWCA Civ 1168
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MICHAEL FORDHAM QC (Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lord Justice Hickinbottom
and
THE RIGHT HONOURABLE Lady Justice Nicola Davies
Case No: C9/2018/1370 & C9/2018/1372
Ms Laura Dubinsky & Ms Alison Pickup (instructed by Duncan Lewis Solicitors) for the Appellant
Mr Jack Anderson (instructed by Government Legal Department) for the Respondent
Hearing dates: 22 nd & 23 rd May 2019
Approved Judgment
This appeal is another case of immigration detention said to have been unlawful. It arises in the somewhat unusual circumstance of a foreign national prisoner remanded in custody and being given a sentence which results in his immediate release from prison. The claimant, Mr Jonas Lauzikas, was at all material times a Lithuanian national entitled to live and work in the United Kingdom since Lithuania is a member country of the European Economic Area; he was therefore not an ordinary foreign national offender to whom deportation would ordinarily apply but an EEA national within the terms of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) enacted pursuant to Council Directive 2004/38/EC (“the Citizens Directive”), which imposes more stringent safeguards on deprivation of liberty than are available to ordinary foreign national offenders.
On 14 th June 2014 he was arrested, while in possession of an imitation firearm, following an altercation with the partner of his ex-wife and remanded in custody. On 4 th December 2014 he was convicted, after a guilty plea, of the offence of possession of an imitation firearm with intent to cause fear of violence and, on 27 th January 2015, sentenced to 14 months' imprisonment, credit being given for his guilty plea. Since he had been in custody for over seven months, he was eligible for immediate conditional release under licence but an immigration officer decided that he should be detained in administrative detention with a view to consideration being given to his deportation pursuant to regulation 24(1) of the 2006 Regulations. He was held in administrative detention until 29 th April 2015 when a judge from the First Tier Tribunal granted him bail.
It is necessary to have 5 separate stages of his detention in mind (timings are from noon to noon on each day):-
1) 27 th – 28 th January 2015
It is common ground that his detention for this one day was unlawful because the Secretary of State (“the defendant”) failed to give Mr Lauzikas reasons for his detention at the time of detaining him. The deputy judge, however, held that the defendant was entitled to detain Mr Lauzikas and, therefore, could and would have detained him in any event; so, Mr Lauzikas was only entitled to nominal damages.
Mr Lauzikas appeals both the decision that he could have been lawfully detained and the decision to award him only nominal damages.
2) 28 th January – 25 th February 2015
On 24 th February the defendant decided to deport Mr Lauzikas and certified, pursuant to regulation 24AA of the 2006 Regulations, that he could be removed pending appeal. Notice of the decision was served on 26 th February. The deputy judge held that detention up to 25 th February was unlawful because the defendant had not acted with what he called the “imperative urgency” required by the Article 27(2) of the Citizens Directive.
The defendant appeals this decision and says that, in any event, only nominal damages are recoverable.
3) 25 th February – 12 th March 2015
On 5 th March the defendant made removal directions for 12 th March. On 10 th March Mr Lauzikas filed an appeal to the First Tier Tribunal and on 11 th March issued judicial review proceedings in the High Court in respect of both his detention and the defendant's certification of removal before appeal. On 12 th March removal directions were cancelled.
The deputy judge held this period of detention was lawful and there is no appeal in relation to this stage 3.
4) 12 th March – 9 th April 2015
Once removal directions had been cancelled, the defendant continued to detain Mr Lauzikas pursuant to detention reviews of 23 rd March and 9 th April. The deputy judge held that there was a reasonable prospect of Mr Lauzikas being deported within a reasonable time during this period.
Mr Lauzikas appeals this decision on the grounds that there was no such prospect either as at 12 th March or, at least, as at 30 th March 2015 when the defendant filed her acknowledgement of service without making any request for expedition of the judicial review hearing.
5) 9 th April – 29 th April 2015
The deputy judge held that detention was unlawful for this period because there was no longer a reasonable prospect of deportation within a reasonable time.
There is no appeal against this decision.
It is, therefore, stages 1,2 and 4 which are the focus of the appeal.
Stage 1
As I have said there is no dispute that detention for this one day was unlawful because Mr Lauzikas was not given the reason for detention. But the deputy judge held that he could and would have been detained in any event if the reason had been given, because he was a serious offender whom the Secretary of State was entitled to detain while considering whether to deport him.
Ms Laura Dubinsky for Mr Lauzikas submits that this is wrong because at this stage the Secretary of State knew no more than that Mr Lauzikas had been convicted of possessing an imitation firearm and had been given a sentence that led to his immediate release from custody. She said that detention on the basis of this information alone would have contravened the Citizens Directive, Article 27 of which provides:-
“1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”
The argument has some relevance to stage 2 to which I shall come in due course, because the deputy judge accepted that detention during stage 2 was indeed unlawful for breach of Article 27.2 standards. But he did not accept that that conclusion applied to stage 1.
In relation to stage 1 the judge said this (para 61):-
“The Home Office had been alerted to a case arising out of crown court proceedings, where the sentence of the Court and period on remand combined to make the question of immigration detention urgent. The requirement of individualised proportionality and necessity can in my judgment cater for situations where very little is known about the individual but there are real grounds for concern, provided always that the recognition of that situation is accompanied by a recognition of the need to obtain such fuller information as is available about the individual's conduct, circumstances and risk profile, with imperative urgency. It would, on the face of it, be best if proactive liaison arrangements between the Home Office and criminal justice authorities put an executive detaining decision-maker in a more informed position from the outset. In this case, the claimant had pleaded guilty, his case had been adjourned for a pre-sentence report, and the extent and implications of his lengthy period on remand were discernable. I cannot describe as satisfactory the situation in which the Home Office found itself at stage 1. Nevertheless, I have concluded that the Secretary of State discharges the onus of demonstrating that her undoubtedly protective and precautionary approach based on what was known about the claimant satisfied the Article 27.2 standards on that first day. The protective approach is perhaps encapsulated in IO Zabardast's phrase in the form ICD3079, that in the known circumstances it was “not considered reasonable to leave the public vulnerable to the potential for him to re-offend”. Executive detention is a serious step and urgent initial intrusive action will in my judgment continue to satisfy Article 27.2 standards on the proviso that further information about the claimant's conduct and circumstances is obtained and considered as a matter of imperative urgency. I see that proviso as a vital one, reconciling the policy imperatives and securing that Article 27.2 standards provide a robust and disciplined protection for the individual against executive detention.”
Ms Dubinsky attacks this conclusion on the basis that at stage 1 there was not in fact an approach that satisfied Article 27.2 because the detaining officer only had regard to Mr Lauzikas's previous convictions and on the basis that the requirements (that detention be based exclusively on the personal conduct of Mr Lauzikas and that it be proportional) as laid down by the Article were not met.
Stage 2
Here the arguments are a development of the arguments at Stage 1. The deputy judge held that the necessary inquiries to justify the detention from 28 th...
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