In R (Nakrasevicius) v Secretary of State for the Home Department [2024] EWHC 1856 (Admin), the High Court ordered the defendant Home Secretary to release a detainee who was being detained pending the resolution of Proceeds of Crime Act proceedings against him in the Crown Court. It addresses the relatively unusual circumstance of a detainee who wishes to leave the UK but is being forced to remain because of non-immigration legal proceedings.

Breach of Hardial Singh 1

The background was that the claimant had been convicted of trafficking offences and possessing criminal property. After serving his criminal custody, he ended up in immigration detention and quickly withdrew his pending EU Settlement Scheme application and signed a voluntary return disclaimer in order to return to Lithuania.

However, in the meantime, the Crown Prosecution Service had begun proceedings against him in the Crown Court to recover stolen property. The Home Office decided that they would pause deportation while those proceedings progressed, but keep the claimant in immigration detention.

The court determined that the claimant had established a strong case that detention was for an improper purpose. Mr Justice Sheldon held that:

It is clear to me, however, that the claimant has established a strong prima facie case that the defendant has been acting unlawfully in detaining him since he withdrew his EUSS application. Up until that point, the EUSS application served as a barrier to his removal. From that point onwards, however, the evidence suggests that the only barrier to the claimant’s removal was the POCA proceedings. It is strongly arguable, however, that those proceedings should not have constituted a barrier to the claimant’s removal and the defendant has used the detention power for an improper purpose. The detention power has not been exercised for, or at least solely for, the purpose of effecting the claimant’s deportation, rather the power has been used, at least in part, for the purpose of allowing the POCA proceedings to take their course.

This is a rare instance of the court identifying a breach of Hardial Singh 1.

First-tier Tribunal bail not an alternative remedy

The judge rejected the argument that an application to the First-tier Tribunal for bail was a suitable alternative remedy in circumstances where there was a ground of challenge (regarding accommodation) which could only be dealt with by the High Court:

Whilst I accept that, in the ordinary case seeking bail from the First-tier Tribunal might be a suitable alternative remedy, that would not always be the case, in particular here, where point two is allied to a ground of challenge (point one) that can only be heard by the High Court. It would make no sense for the different arguments to be presented in two different fora.

Schedule 10 accommodation and Proceeds of Crime Act

The judge went on to conclude that the defendant was obliged to provide the claimant with Schedule 10 accommodation unless and until the claimant was able to obtain the release of funds which had been frozen by the Crown Court in the Proceeds of Crime Act proceedings. The judgment provides helpful guidance on the interplay between those proceedings and immigration detention.

Alex Schymyck represented the Claimant, instructed by Halima Safa Ahmed of Duncan Lewis Solicitors.