Lauzika, R (On The Application Of) v Secretary of State for the Home Department, England and Wales High Court (Administrative Court), Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

LAURA DUBINSKY and JANE ELLIOTT-KELLY
(instructed by Lupins Solicitors) for the Claimant

See more information ...

Click here to read the full judgment

Lauzika, R (On The Application Of) v. Secretary of State for the Home Department

Smart Summary

Factual and Procedural Background

This claim for judicial review concerns the legality of the executive immigration detention of the Plaintiff by the Secretary of State during a three-month period from 27 January 2015 until 29 April 2015, when the Plaintiff was released on bail by order of the First-Tier Tribunal (FTT). The Plaintiff subsequently returned voluntarily to his country of origin to visit a hospitalised relative and later returned for a deportation appeal, which succeeded based on evidence as of the hearing date. The immigration detention was analysed in four distinct stages, each corresponding to specific contemporaneous documents and decisions by immigration officers (IOs) acting for the Secretary of State.

Stage 1 began on 27 January 2015 with the Plaintiff’s detention following notification of a 14-month prison sentence for possession of an imitation firearm, with immediate release from custody based on time served. No reasons for detention were provided at this stage. Stage 2 started on 28 January 2015, involving a detention proposal referencing the Plaintiff's conviction and sentence, describing the offence as serious, and assessing risks of absconding and reoffending without detailed individualised information. Stage 3 commenced on 25 February 2015 with the first monthly detention review, incorporating fuller information including a probation report and social services input, and continued detention was authorised. Stage 4 began on 11 March 2015 following legal challenges to deportation and certification decisions, with removal directions cancelled and detention reviewed further, including consideration of bail and accommodation issues. The Plaintiff was ultimately granted bail on 29 April 2015.

Legal Issues Presented

Whether there is an EU law based test of individualised proportionality and necessity applicable to immigration detention decisions.
When a public law flaw in a distinct decision by the Secretary of State renders immigration detention unlawful.

Arguments of the Parties

Appellant's Arguments

The Plaintiff argued that under EU law, specifically Article 27.2 of Directive 2004/38/EC (the Citizens Directive), immigration detention decisions must be individually justified by proportionality and necessity standards, requiring that detention be based exclusively on the personal conduct of the individual and that less restrictive measures be considered.
The Plaintiff contended that the detention at stages 1 and 2 was unlawful because it was based on the fact of conviction and general prevention considerations rather than individualised assessment of conduct and threat.
It was submitted that public law breaches in distinct decisions, such as certification and refusal of accommodation, bore on the detention and rendered it unlawful.
The Plaintiff argued that the Secretary of State failed to comply with the Hardial Singh Principles, particularly the requirement that detention not exceed a reasonable period if removal cannot be effected.

Respondent's Arguments

The Secretary of State contended that the Article 27.2 standards do not apply directly to detention decisions but regulate the existence of the power to detain, not its exercise in individual cases.
It was submitted that the domestic Hardial Singh Principles and ECHR Article 5(1)(f) provide the applicable legal framework, which does not impose individualised proportionality or necessity tests on detention decisions.
The Secretary of State argued that detention decisions at stages 1 and 2 were based on the Plaintiff’s conduct constituting the offence and the risks posed, and that fuller individualised information was not practically available at that time.
Regarding public law breaches in distinct decisions, it was contended that only serious breaches such as irrationality or bad faith could render detention unlawful.
The Secretary of State maintained that the misdirection in the certification decision was not material, as lawful certification would inevitably have been reached on correct legal grounds.
It was further submitted that the refusal of accommodation did not materially affect the detention decision and that the continued detention during judicial review proceedings complied with Hardial Singh principles.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (ASK) v SSHD [2017] EWHC 196 (Admin)	Approach to evidence: consider evidence in the round, contemporaneous records as summaries, avoid hindsight and artificially high standards.	The Court adopted this approach when assessing the evidence before the Secretary of State.
R (Lumba) v SSHD [2011] UKSC 12	The What-Breach Principle: any material public law breach bearing on the decision to detain renders detention unlawful; onus on Secretary of State to justify detention.	Guided the Court’s analysis on when public law breaches in distinct decisions affect detention lawfulness.
R (Kambadzi) v SSHD [2011] UKSC 23	Public law breach must bear directly on the discretionary detention power to render detention unlawful.	Supported the Court’s adoption of the What-Breach Principle as governing principle.
R (OM) v SSHD [2011] EWCA Civ 909	Only nominal damages recoverable if detention would inevitably have occurred lawfully.	Applied in assessing damages related to detention unlawfulness.
R (Lumsdon) v Legal Services Board [2015] UKSC 41	EU proportionality test requires necessity: no less restrictive equally effective measures.	Supported the Court’s conclusion that Article 27.2 standards include individualised necessity and proportionality.
R (Nouazli) v SSHD [2016] UKSC 16	Detention ancillary to removal decision; proportionality applies to detention power and its exercise; no statutory maximum time limit required.	Court found Article 27.2 standards apply to detention decisions individually, rejecting respondent’s narrower interpretation.
R (Machnikowski) v SSHD [2016] EWHC 54 (Admin)	Proportionality in detention duration assessed under Hardial Singh principles; no separate EU necessity test for detention duration.	Referenced to distinguish duration issues from proportionality in initial detention decisions.
Policie CR v Al Chodor Case C-528/15 [2017]	EU law may provide more extensive protection than ECHR Article 5 minimum standards.	Supported the Court’s acknowledgment of Article 27.2 standards as potentially more protective.
R (Shoesmith) v Ofsted [2011] EWCA Civ 642	Public law breach by a second actor (distinct public authority) involves different considerations.	Distinguished from the present case where all decisions were by the Secretary of State.
Ullah v Home Office [1994] Imm AR 166	Detention lawful if statutory condition precedent (notice to deport) given, even if flawed except in narrow cases of bad faith.	Considered in relation to when public law flaws in distinct decisions affect detention lawfulness.
D v Home Office [2005] EWCA Civ 38	Public law errors in detention decision render detention unlawful; challenges to detention distinct from distinct decisions.	Clarified relationship between public law errors and detention unlawfulness.
R (Kullas) v SSHD [2009] EWHC 735 (Admin)	Distinct decision flaws render detention unlawful only if irrational or in bad faith.	Applied in assessing materiality of public law breaches in distinct decisions.
R (Hatega) v SSHD [2009] EWHC 1980 (Admin)	Unreasonableness in distinct decision can render detention unlawful if removal is not imminent.	Supported the Court’s view that substantive unreasonableness in a distinct decision can affect detention lawfulness.
R (Qader) v SSHD [2011] EWHC 1956 (Admin)	Illegality in removal directions can render detention unlawful from date of first review after the breach was known.	Used to illustrate timing and effect of public law breaches in distinct decisions on detention.
R (Draga) v SSHD [2012] EWCA Civ 842	Material public law error in distinct decision bearing on detention renders detention unlawful; not all appeals or breaches suffice.	Key authority for the What-Breach Principle and its application to distinct decisions.
R (AA (Afghanistan)) v SSHD [2013] UKSC 49	Material breach of statutory duty in distinct decision (e.g. age assessment) renders detention unlawful under What-Breach Principle.	Confirmed applicability of What-Breach Principle to distinct decisions beyond detention decisions themselves.
Tsavdaris v Home Office [2014] EWHC 440 (QB)	Public law error in refusal to revoke deportation order rendered detention unlawful from date error should have been appreciated.	Illustrated timing and effect of public law breaches in distinct decisions on detention.
R (Khan) v SSHD [2014] EWHC 2494 (Admin)	Illegality in removal decision supports claim of unlawful detention but does not automatically render detention unlawful.	Qualified the impact of public law errors in distinct decisions on detention lawfulness.
R (X) v SSHD [2016] EWHC 1997 (Admin)	Certification decision flawed in law; detention unlawful on basis of inadequate risk reasoning.	Referenced in relation to certification decision unlawfulness and detention.
R (TN (Vietnam)) v SSHD [2017] EWHC 59 (Admin)	Procedural fairness in detained fast-track asylum decisions; nullification of one executive act does not void all related acts.	Contextual reference regarding procedural safeguards and detention.
R (AB) v SSHD [2017] EWCA Civ 59	Lawfulness of removal decision assessed on material before Secretary of State; later findings of unlawfulness do not automatically affect decisions based on it.	Emphasised finality and statutory scheme in assessing impact of public law breaches on detention/removal.
DN (Rwanda) v SSHD [2018] EWCA Civ 273	Reaffirmed Draga and What-Breach Principle; public law breach must be relevant and bear on detention for unlawfulness to arise.	Confirmed binding nature of Draga and refined application of What-Breach Principle.
R (Kiarie) v SSHD [2015] EWCA Civ 1020	Materiality test for misdirection in certification decision; decision lawful if it would have been the same on correct approach.	Applied in assessing certification decision misdirection and its impact on detention lawfulness.
R (Macastena) v SSHD [2015] EWHC 1141 (Admin)	Certification for interim removal should be exercised only where really desirable; certification power conferred by Parliament is rarely unlawful.	Supported the Court’s conclusion that certification decision would have been lawful despite misdirection.
R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin)	Hardial Singh Principle No.3 protects against detention when removal cannot be effected within a reasonable time.	Referenced in relation to breach of Hardial Singh 3 principle at stage 4.

Court's Reasoning and Analysis

The Court began by affirming the applicability of EU law Article 27.2 standards to immigration detention decisions, requiring individualised proportionality and necessity, and rejecting the Secretary of State’s argument that these standards apply only to the existence of the detention power rather than its exercise. The Court analysed the four stages of detention:

Stage 1: Although no reasons were provided, the Court found the detention lawful on the basis that the urgent circumstances justified a precautionary approach with limited information, provided that fuller individualised information was obtained with imperative urgency.
Stage 2: The Court held the detention unlawful for breach of Article 27.2 standards due to absence of adequate individualised information and reasons, noting the failure to urgently obtain available reports such as the pre-sentence report (PSR) which contained relevant conduct and risk assessments.
Stages 3 and 4: Detention was lawful at stage 3 and lawful at the beginning of stage 4, as fuller individualised information including the PSR, probation reports, and social services input had been considered, and risk assessments were justifiable. The Court found that alternatives to detention had been considered and properly rejected based on assessed medium to high risks of absconding, reoffending, and harm.
Hardial Singh Principles: The Court found no breach of Hardial Singh Principle No.2 (reasonable period) at stages 2 and 3, but found a breach of Principle No.3 at stage 4 from 9 April 2015 due to failure to secure expedition of judicial review proceedings which barred removal, making removal within a reasonable time impossible.
Public Law Breaches in Distinct Decisions: The Court applied the What-Breach Principle, holding that a material public law breach in a distinct decision renders detention unlawful if it bears on and is relevant to detention. The Court found that the misdirection in the certification decision was not material because lawful certification would inevitably have been reached. The unlawful refusal of accommodation under section 4 was not a material cause of continued detention, as the refusal of temporary release was not based solely on absence of an address and would have been the same regardless.

The Court emphasised that the legality of detention is assessed on the material before the Secretary of State at the time of the decision, rejecting the Secretary of State’s invitation to consider later obtained material or subsequent detention decisions when assessing legality at earlier stages.

Holding and Implications

The Court granted declarations as follows:

The Plaintiff's detention from 27 January 2015 to 28 January 2015 was unlawful due to absence of reasons, but only nominal damages are recoverable.
The Plaintiff's detention from 28 January 2015 to 25 February 2015 was unlawful for breach of EU Directive 2004/38/EC Article 27.2 standards, with compensatory damages recoverable.
The Plaintiff's detention from 25 February 2015 to 9 April 2015 was lawful.
The Plaintiff's detention from 9 April 2015 to 29 April 2015 was unlawful for breach of Hardial Singh Principle No.3, with compensatory damages recoverable.

The direct effect of this decision is to confirm the unlawfulness of certain periods of the Plaintiff's detention, entitling him to compensatory damages for those periods. The Court clarified the legal standards applicable to immigration detention, particularly affirming the applicability of EU individualised proportionality and necessity standards to detention decisions and the circumstances in which public law breaches in distinct decisions render detention unlawful. No new binding precedent was established beyond the application and synthesis of existing authorities.