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EU law can be used to challenge employment restrictions imposed during deportation proceedings


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In May, Nick wrote about the important High Court decision in R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin), which threw a spanner in the works of the Home Office’s policy of automatic detention of foreign criminals at the end of their sentence. Mr Lauzikas (incorrectly called “Lauzika” on Bailii) had pleaded guilty of possession of an imitation firearm — a BB gun — in December 2014. He was given a 14-month sentence but due for release immediately on the basis of time served. The Secretary of State proposed to deport Mr Lauzikas and detained him, but he won the deportation appeal and the High Court decided that much of his detention had been unlawful. As Nick says:

The key finding is that the standards set out in the Free Movement directive, including proportionality and necessity, must govern the decision to detain, and not merely the linked decision to deport.

It turns out there has been more litigation in the case, addressing the restrictions on Mr Lauzikas’s right to work while on bail in 2015. The First-tier Tribunal, in granting bail, had refused to impose an employment restriction as a bail condition, but a week after release the Home Office slapped one on him anyway.

The original claim for judicial was dismissed in 2016 but the department has now conceded the appeal. Laura Dubinsky and Alison Pickup, who represented Mr Lauzikas, have posted about the case on the Doughty Street Chambers website and included a copy of the agreed statement of reasons. It says:

Having given further consideration to the merits of the appeal the respondent accepts that:

a. the imposition of a work restriction limiting an EEA national’s ability to work in another Member State is a limitation on a fundamental freedom protected by EU law,

b. Such as work restriction may only be imposed following an assessment of whether the work restriction is proportionate (and thus also justified and necessary) in the individual circumstances of each case. Whilst the consideration giving rise to the decision to deport an EEA national will be relevant to that assessment, the decision to impose a work restriction requires separate consideration and separate justification on the facts of each case;

c. the requisite proportionality assessment did not occur and nor was the work restriction in fact necessary or justified on the facts of the Appellant’s case.

The reasoning appears similar to the High Court’s decision on the lawfulness of detention: EU law standards are in play when it comes to decisions linked to deportation, not just the decision to deport itself. As Ms Dubinsky and Ms Pickup put it, “an employment restriction can only be imposed on an EU national following consideration of whether the employment restriction is necessary, justified and otherwise proportionate. It is not enough for the Home Office to point to the fact that it has decided to deport the individual”.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.