The case of R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin) marks an important development in the law on the detention of European nationals pending deportation. 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.

EU citizen detained following release from prison

The Lithuanian claimant was convicted for possession of an imitation firearm and given a 14-month sentence on 27 January 2015. He had been held on remand since his arrest and charge the previous year, and was due to be released on the basis of time served at the time of sentencing.

As a foreign national offender, he came to the attention of the Secretary of State’s Criminal Casework Directorate and detained to effect removal.

That letter expressed the same generalised concerns with which practitioners will no doubt be familiar: the detainee presented a risk of serious harm to the public, risk of absconding, and removal was imminent. As recorded in the judgment, though

As at 29 January 2015 the Secretary of State did not have the trial record sheet (TRS), Judge’s sentencing remarks (JSR), any “OASys Assessment” from the offender manager, or any PSR. These were all requested by IO Zabardast on 29 January 2015 in what her note described as “Information gathering”

It was only on 25 February 2015 that the relevant decision-maker received some of these documents and fleshed out the reasons for Mr Lauzikas’s detention. He was held until 29 April 2015 when he was released on bail.

Application of the Free Movement Directive to detention

The legal reasoning advanced by Laura Dubinsky for the claimant is set out in full at paragraph 23 of the judgment. It is worth a read.

The argument, accepted in its entirety by Michael Fordham QC, sitting as a deputy High Court judge, led to the inevitable conclusion that the decision to detain someone must be justified by the Secretary of State as being individually necessary applying the Article 27.2 standards, and with no less restrictive measure being as effective.

Practitioners with experience of European deportation cases will know the provision well. But it is worth reflecting on Article 27.2 in light of its apparent application to European detention cases:

Measures taken on grounds of public policy or public security [including detention] 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 [detention]…

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 practice of the Secretary of State is to almost always detain foreign prisoners — whether European or otherwise — at the end of their sentence. This was one of the lasting legacies of the 2006 foreign prisoner scandal.

At the point that the decision to detain was made, found the court (paragraph 59), the Secretary of State had only just started the process of requesting the documents which might indicate the risk posed by the claimant:

This situation and sequence raises a serious concern as to how the detention could be “based … on the personal conduct of the individual” as it is required by Article 27.2 standards “exclusively” to be, and whether the claimant’s “criminal conviction[]” was treated as itself “constitut[ing] grounds for” the detention. The onus is on the Secretary of State to satisfy the Court that legally sufficient evidence and reasons were present to justify detention, having regard to applicable standards of individualised proportionality and necessity.

The court found that Mr Lauzikas’s detention in this case was deemed to have been unlawful under Article 27.2 until 25 February, the day that the Secretary of State provided the first monthly progress report.

Where does this leave Home Office policy of “automatic” post-sentence detention?

This decision would appear to throw a rather large spanner in the works for the Secretary of State’s policy of automatically detaining EU nationals at the conclusion of their prison sentences on the sole basis that they have been convicted of an offence.

In order to comply with the law as set out in this case, the Secretary of State will in future need to engage in a much fuller individual assessment on or before the day that detention is ordered, by reference to documents such as the judge’s sentencing remarks, and any pre-sentence reports or documents that indicate risk.

In plain terms, the Secretary of State will need to get his ducks in a row before making a decision to detain. And given that the Home Office is not a renowned organiser of ducks, this may present something of an issue.

Other unlawfulness, and some lawfulness

Through his counsel, Mr Lauzikas threw the kitchen sink at this case and this is reflected in the length and detail of the judgment.

The court found that detention of the claimant was also unlawful for part of the time he was held by reference to Hardial Singh Principle 3 (detention is not lawful where removal cannot be effected within a reasonable period of time).

And the judgment includes a thorough analysis of the law surrounding flawed “distinct decisions” in unlawful detention cases, and how errors in these separate but related decisions (e.g. a decision to deport which leads to a decision to detain), can impact on the lawfulness or otherwise of that detention. Although Mr Lauzikas did not succeed on this argument, it is a useful summary of the law in this area.

Practitioners dealing with EU deportation cases where an individual has been detained would be well-advised to read this judgment in full.