Leszkiewicz v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a national of an EU country, settled in Northern Ireland in June 2010. On 12 July 2019, the Appellant committed a sexual offence and was convicted on 5 May 2021, receiving a sentence of seven months imprisonment followed by seven months licenced release. The scheduled release date was 7 September 2021; however, the release did not occur.

The Secretary of State for the Home Department (the Secretary of State) was proposing deportation action against the Appellant, presumably related to his conviction, and had notified the Prison Service accordingly. Nonetheless, the necessary paperwork, including formal notification and relevant forms, had not been properly served on the Appellant at the relevant time. The Secretary of State’s powers under immigration legislation, including potential detention powers under section 36 of the UK Borders Act 2007 and/or paragraph 2 of Schedule 3 to the Immigration Act 1971, were implicated, though the precise legal basis was not definitively established given limited evidence.

The Appellant remained detained by the Prison Service from 7 September to 2 November 2021 at the instigation of the Secretary of State. During this period, communications between the Appellant’s solicitor and the Secretary of State’s agents revealed an unsatisfactory and inconclusive situation, notably concerning the service of Form IS.91 and related documents, which were only provided belatedly on 24 September 2021, the same day judicial review proceedings were initiated.

On 27 September 2021, the High Court refused the Appellant’s application for leave to apply for judicial review. Subsequently, on 12 October 2021, the Appellant was transferred to an immigration detention centre in Scotland and was granted bail by the First-tier Tribunal on 2 November 2021.

Following the appeal, further affidavit evidence was filed by the Appellant and his solicitor, but neither addressed events after 2 November 2021, including the Appellant’s current immigration status or progress of deportation proceedings. The Secretary of State filed no evidence.

Legal Issues Presented

1. Whether the Appellant was unlawfully detained from 7 September to 24 September 2021 due to failure to serve appropriate formal notices and documentation.
2. Whether the High Court erred in refusing leave to apply for judicial review on the basis that the matter had become academic following service of the relevant notices.
3. Whether declaratory relief should be granted on grounds of public interest and to avoid injustice or inconvenience to the Appellant.

Arguments of the Parties

Appellant's Arguments

• The Appellant was unlawfully detained between 7 September and 24 September 2021.
• The formal notices and documentation were served only after the judicial review proceedings were initiated and were not explained in any language to the Appellant.
• The High Court judge erred in treating the matter as academic after service of the notices and failed to recognize the Appellant’s ability to bring a separate claim for damages.
• The Appellant should be granted declaratory relief because the case involves matters of public interest likely to arise again and because withholding a declaration would be unjust or inconvenient, potentially necessitating further litigation and expense.

Respondent's Arguments

• The proceedings are undermined by the Appellant’s failure to pursue an alternative remedy, namely a civil action for damages for false imprisonment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
JS (Sudan) v SSHD [2013] EWCA Civ 1378	Interpretation of detention powers under immigration legislation and application of Immigration Rules (Part 13).	Cited as a possible relevant authority in relation to the Secretary of State’s detention powers, though the court did not definitively apply it due to limited evidence.
Re Alexander's Application [2009] NIQB 20	Preference for challenges to lawfulness of arrest to be pursued by conventional lis inter partes proceedings involving oral testimony and cross-examination.	Referenced to support the court’s view that the Appellant has an adequate alternative remedy and that judicial review may not be the most appropriate procedure for the claim.

Court's Reasoning and Analysis

The court acknowledged the incomplete factual matrix and evidential gaps, largely due to the parties’ choices and the Secretary of State’s failure to adduce evidence. It recognized that the Appellant was detained at the Secretary of State’s instigation and that there was prima facie evidence of unlawful failure to serve appropriate formal notices and to exercise statutory powers efficiently and expeditiously in a context involving deprivation of liberty.

While the alternative remedy of a civil action for damages was available and arguably more appropriate for resolving disputed factual issues, the court found that the threshold for granting leave to apply for judicial review was met given the public law duty implicated and the liberty interests involved. However, the court declined to proceed to substantive determination or remit the matter to the High Court due to evidential shortcomings and the overriding objective of the court.

Balancing the parties’ submissions and the overriding objective, the court exercised its discretion to grant leave to apply for judicial review and ordered that the proceedings continue as if begun by writ, thereby converting the application and allowing the matter to proceed in a more suitable procedural form.

Holding and Implications

The court granted leave to apply for judicial review and varied the High Court’s order accordingly. The proceedings were ordered to continue as if begun by writ, enabling a full hearing in an appropriate procedural context.

The direct effect of this decision is to permit the Appellant’s challenge to proceed beyond the leave stage, providing an opportunity for substantive examination of the claims. No substantive ruling on the merits was made, and no new precedent was established. Costs were reserved given the absence of a clear winner at this early stage and the Appellant’s legal assistance status.