The Home Office cannot detain an EU citizen pending deportation without first considering whether detention is “proportionate and necessary” under EU law, the Court of Appeal has said in R (Lauzikas) v Secretary of State for the Home Department [2019] EWCA Civ 1168. Any decision to detain cannot be based solely on previous convictions — it must be subject to “sufficiently individualised” assessment before (or very soon after) an EU citizen is detained.

Substantial damages were also awarded to Mr Lauzikas for his continued detention after removal directions were cancelled. The court noted the glut of judicial review claims in the Administrative Court and held that the appellant’s claim couldn’t have been dealt with in a “reasonable time”. As such, there was no power to detain.

These are welcome conclusions from the Court of Appeal, which was unanimous in holding that protections for EU citizens in detention are inadequate. The court agreed with the findings of deputy High Court judge Michael Fordham QC, who held last year that the automatic detention of EU nationals pending their deportation did not comply with Article 27 of the Citizens’ Rights Directive. 

Individualised proportionality assessments for detaining EU nationals

Under Article 27, any restrictions on freedom of movement on grounds of public security must “comply with the principle of proportionality and be based exclusively on the conduct of the individual concerned”. In addition, “previous criminal convictions will not in themselves constitute grounds for such measures”. 

The Home Office argued in the High Court that Article 27 meant only that the existence of a power to detain needs to be proportionate. The court disagreed, holding that it was the exercise of the power to detain that needed to be proportionate, and warranted individualised assessment of the facts by the Home Office before throwing an EU citizen in detention.

The High Court’s decision was a spanner in the works of the Home Office’s policy of automatically detaining those finishing a custodial sentence. Despite this, Mr Lauzikas continued the fight to the Court of Appeal on the grounds that the court was wrong to award him only nominal damages for the first 24 hours of detention (‘Stage 1’ in the judgment) and in finding that his continued detention after removal directions were cancelled was lawful (‘Stage 4’).

Importantly, the Home Office did not appeal the issue of individualised proportionality assessment of EU detainees. Its only bone of contention was with the decision to award compensatory damages for not acting fast enough in gathering the evidence to make the proportionality assessment (‘Stage 2’). Also, the Home Office has admitted failing to conduct individualised proportionality assessments in parallel litigation, so it seems to have conceded this point. 

“Precautionary approach”

While Lord Justice Longmore agreed that EU law principles must govern the decision to detain, he agreed with the High Court’s findings on ‘Stage 1’ nominal damages. He acknowledged the “practical reality” that the Home Office may sometimes detain those it believes to be a threat to the public without having all the relevant information at hand.

Longmore LJ held at paragraph 26 that this “precautionary approach” was permitted so long as the Home Office obtained all relevant information in a reasonable time, “while recognising that in cases where the liberty of an EEA national is concerned that [reasonable] time may be very short.”

On what information the Home Office should consider in making its individualised proportionality assessment, Longmore LJ gave the following guidance:

The [High Court] judge focuses, naturally enough, on the pre-sentence report but the same considerations apply to the OASys assessment which, like the pre-sentence report was dated 31st December 2014 and was presumably available to the sentencing judge on 27th January 2015. The judge’s own sentencing remarks would also be relevant.

In relation to ‘Stage 2’, Longmore LJ criticised the Home Office for its lax approach to obtaining all the information relevant to its decision:

Quite apart from the fact that these documents were available to the state (qua state) which is the entity which detained Mr Lauzikas and continued to detain him between 28th January and 25th February, there is no reason why those documents (or at least the pre-sentence report which the judge regarded as potentially the most significant) could not have been obtained by the Home Office within 24 hours of the initial decision to detain.

It seems that, even taking practical realities into account, any longer than a day may stray beyond what the court considers a “reasonable time” for obtaining documents. This may be setting the bar a little high for a department that has taken over two decades to determine some asylum claims.

Substantial damages for unlawful detention 

In relation to ‘Stage 4’ of Mr Lauzikas’ detention, the court decided to award substantial damages. Longmore LJ was particularly critical of the decision to detain Mr Lauzikas during judicial review proceedings where no application was made for the judicial review to be expedited. He held that the Home Office’s decision was taken where there was no prospect that he would be removed within a reasonable timescale. The court held that the High Court, in awarding only nominal damages, had:

failed with respect to take into account exactly how unlikely it was that the Administrative Court could deal with the [judicial review] matter if it was not expedited.

This will be particularly important to practitioners whose EU clients aren’t released after removal directions have been cancelled. The court clearly recognises that no ordinary judicial review proceedings will be concluded by the Administrative Court very quickly and so continued detention is unjustifiable.

There has been a massive increase in the detention of EU citizens over the past decade, making up almost one fifth of the detention estate as of 2018. Removals of EU citizens have also more than doubled since 2013. The far-reaching principles invoked in this judgment will hopefully lead to a wholesale change in immigration enforcement as it affects Europeans. Whether it has any impact after October remains to be seen.