Unlawful immigration detention in the UK is an issue that is widely publicised in the UK. Unlike other EEA nations, there is no time limit on the length that a migrant can be detained pending deportation. The case of R (Jonas Lauzikas) v Secretary of State for the Home Department  EWHC 1045 (Admin) (“R (Lauzikas) v SSHD”) raises the question of Unlawful EEA Detention in the UK.
Unlawful EEA Detention Case: Background
Mr Lauzikas (“the Claimant”) is a Lithuanian national who was in the UK exercising his Treaty Rights as a worker. The Claimant had been convicted at Ipswich Crown Court on 14 June 2014 for possession of an imitation firearm and after entering a guilty plea, was sentenced to 14 months on 4 December 2014. This was the Claimant’s first and only conviction. On 27 January 2015 the Secretary of State (“SSHD”) was notified that that the Claimant had been held in court after being due for release due to time served on remand. The Claimant was issued Form IS91 ‘authority to detain’ and was then held in immigration detention until 29 April 2015.
When the Claimant was detained on 27 January 2015 he was given no reasons for his detention and no record of reasons was made. In the Immigration Officer’s initial proposal for the Claimant’s detention, he described the offense as serious and that serious harm to the public would be caused as a result of similar instances of offending. It also stated that the Claimant’s removal from the UK may be justified on “grounds for public policy, public security or public health”. Moreover, the Claimant was described as likely to abscond if granted temporary admission or release, therefore, immigration detention was ‘justified’. The Claimant had stated that he did not wish to return to Lithuania and that he also had a child from a previous relationship, who was a British citizen in the UK.
Unlawful EEA Detention Case: Basis of Claims
The Claimant’s case highlights two crucial questions in regard to the UK’s immigration detention. The first of which is whether there is an EU law based test of individualised proportionality and necessity and secondly; when a public law flaw in a distinct decision renders immigration detention unlawful. The case was considered at four stages; detention on 27 January 2015, detention from 28 January 2015, detention from 25 February 2015 and detention from 11 March 2015. The Claimant’s solicitors filed two challenges; the first on 10 March 2015 was an appeal to the First-Tier Tribunal against the deportation and a Judicial Review on 11 March 2015 against the certification of the deportation order and detention.
At the time of the Claimant’s initial detention on 27 January 2015, the SSHD did not have the Claimant’s trial record sheet, the Judge’s sentencing remarks, any OASys assessments or pre-sentence report. All of these documents were requested by the SSHD on 29 January 2015, after the Claimant had been detained. As a result, representatives for the Claimant argued that it was not proportionate for the Claimant to have been initially detained as the above-mentioned documents were not available to the SSHD and no reasoning was given for the detention.
Unlawful EEA Detention Case: The Decision
Two of the main considerations by the court were Article 27.2 of the Directive 2004/38/EC (“Article 27.2”) and the Hardial Singh Principles. Article 27.2 deals with “measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned”. Further, the landmark case of R (Hardial Singh) v Governor of Durham Prison  EWHC 1 (QB) sets out four important principles for deportation commonly referred to as the Hardial Singh Principles, which are as follows:
- The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
- The deportee may only be detained for a period that is reasonable in all the circumstances;
- If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
- The Secretary of State should act with all diligence and expedition to effect removal.
The Court decided that the Claimant had been unlawfully detained by the Home Office for almost 50 days. The Judge found that the Claimant’s detention from 27 January 2015 to 25 February 2015 was unlawful in the absence of the Claimant given reasons for being detained and for breach of Article 27.2. The Claimant’s detention from 9 April 2015 to 29 April 2015 was also deemed unlawful for breach of the Hardial Singh Principle 3. The Claimant was awarded damages.
The full judgment can be found here: R (Jonas Lauzikas) v Secretary of State for the Home Department  EWHC 1045 (Admin) | LEXVISA Immigration Solicitors and Barristers
Using Legal Representation to Challenge Unlawful EEA Detention
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to challenge unlawful EEA Detention.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully Challenge Unlawful EEA Detention
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application or appeal.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications and appeals. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02071830570 or complete our contact form.