Lauzika, R (On The Application Of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, May 04, 2018, [2018] EWHC 1045 (Admin)

Resolution Date:May 04, 2018
Issuing Organization:Administrative Court
Actores:Lauzika, R (On The Application Of) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWHC 1045 (Admin)

Case No: CO/1195/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 4 May 2018

Before :

MICHAEL FORDHAM QC

(Sitting as a Deputy High Court Judge)

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Between :

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LAURA DUBINSKY and JANE ELLIOTT-KELLY

(instructed by Lupins Solicitors) for the Claimant

JACK ANDERSON (instructed by Government Legal Department) for the Defendant

Hearing dates: 21-23 February 2018

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MICHAEL FORDHAM QC:

  1. This claim for judicial review raises two questions of principle concerning immigration detention: (1) whether there is an EU law based test of individualised proportionality and necessity (see §§20-35 below); and (2) when a public law flaw in a distinct decision renders detention unlawful (see §§36-54 below).

    PART ONE: THE FACTS

  2. At issue is the legality of the executive immigration detention of the claimant by the Secretary of State during the 3 months from 27 January 2015 until 29 April 2015 when the claimant was released on bail by order of the First-Tier Tribunal (FTT). It does not matter to the analysis, but what happened after that release on bail was that the claimant decided to return to Lithuania voluntarily (13 August 2015) to see his then hospitalised mother. He was then permitted to return (22 June 2016) for his deportation appeal, which succeeded (10 August 2016) based on the evidence before the FTT at the date of the hearing. The parties through their Counsel identified within the 3 months of immigration detention four distinct stages: ``stages 1 to 4''. I will adopt this same classification, describing each stage by reference to features of the key contemporaneous documents, the detailed contents of which I have read and considered. I will avoid long quoted passages, to keep this judgment manageable in length. I will use ``IO'' (for `immigration officer') throughout, as a generic shorthand when referring to individuals participating in the decision-making processes for the Secretary of State.

    Stage 1 (27 January 2015)

  3. On 27 January 2015, the Secretary of State's Criminal Casework Directorate was notified that the claimant was being ``held at court'', having that day received a single 14-month prison sentence for possession of an imitation firearm, but being ``due for release today'' on the basis of ``time served'' on remand at HMP Norwich. The ``paperwork'' was passed to IO Benson ``for allocation'', and he issued a Form IS91 (authority to detain). IO Jell saw a photocopy of the police national computer print-out. That will have given the claimant's name and date of birth (22 July 1988), and will have shown that this was his first conviction. The claimant was given no reasons for detention, and no record of reasons was made. From then on, the claimant was held in immigration detention.

    Stage 2 (from 28 January 2015)

  4. On 28 January 2015, the case worker (IO Zabardast) wrote a proposal for the claimant's detention. The proposal referred to the claimant's conviction at Ipswich Crown Court, said to have been on 16 June 2014. In fact, the offence had been on 14 June 2014 and he was convicted on a guilty plea on 4 December 2014, when the crown court had adjourned sentence for a pre-sentence report (PSR). IO Zabardast's proposal referred to the offence (possession of an imitation firearm) and sentence (14 months), describing the offence as ``particularly serious'' and ``clearly serious''. The claimant's nationality (Lithuanian) was recorded, as was his status as ``an EEA national'' with ``the freedom of movement within the European Economic Area''. The proposal recorded that nothing was known as to claimed ties within the UK, other compassionate factors, evidence of previous absconding, non-compliance with immigration conditions, disregard of immigration laws, or of other factors. It recorded that the claimant did not have ``an extensive criminal record''. It recorded that the claimant had been served with an intention to deport notice (Form ICD 4932 EEA), that ``therefore it is considered that he will have little incentive to remain in touch with the authorities and will not comply with any terms or conditions of release'', and that deportation being ``in process'', the claimant ``can be removed from the UK as soon as possible''. It stated the ``view that the serious harm that would be caused as a result of any similar instances of offending is such that it is not considered reasonable to leave the public vulnerable to the potential for him to re-offend''. Finally, the proposal recorded that there was ``insufficient evidence'' that the claimant ``has adequately addressed the reasons for his offending behaviour'', as by the completion of relevant programmes of ``Enhanced Thinking Skills'' (ETS) and ``victim awareness''. A case note recorded that initial detention papers had been emailed to IO Yildiz for approval. IO Yildiz approved the detention on 28 January 2015, referring to the conviction and sentence and stating: ``I find that there are reasonable grounds for suspecting that [the claimant's] removal from the United Kingdom may be justified on grounds of public policy, public security or public health'', and that having ``considered the facts'' she was ``satisfied that detention is both reasonable and proportionate to reduce the risk of harm, re-offending and absconding in this case''.

  5. A decision letter (form ICD.1913) dated 28 January 2015 was written by IO Zabardast and provided to the claimant. It referred to the claimant as being the subject of deportation action, and being detained ``to effect removal'' which was ``imminent''. The letter recorded that ``there is a presumption in favour of release'', but that ``because of the seriousness of the harm to the public should you re-offend and or high risk of absconding, there is reason to believe that you would not comply with any restrictions attached to your release''. The claimant was described as ``likely to abscond if given temporary admission or release'', which release ``carries a high risk of public harm'' and ``a risk of further re-offending''. Factors relied on were that there were ``no barriers to your removal''; that ``you do not have enough close ties (eg. family or friends) to make it likely that you will stay in one place''; that the ``conviction(s) for a serious crime'' shows a ``lack of respect for United Kingdom law''; that the claimant had been ``assessed as posing a serious risk of harm to the public because you have committed the ... offence(s) Possession & or use of Offensive Weapon (Firearm Offences)''; that he had ``committed an offence and there is a significant risk that you will re-offend''; and his ``unacceptable character, conduct or associations''. The decision letter went on to address ECHR Article 5, stating that ``deportation action'' meant there was a ``legitimate aim'', and that ``taking into account all the known facts of your case ... detention is proportionate to a social need being fulfilled and ... is necessary for the prevention of disorder and crime and ... in the wider public interest of the maintenance of an effective immigration policy''. As to ECHR Article 8, the letter recorded that having ``weighed up the extent of your possible private/ family life against your criminal convictions'', it was considered that detention was ``proportional to a social need being fulfilled''.

  6. By this stage, there was also a notice of liability to deportation (form ICD.4932 EEA) which was written for the Secretary of State by IO Fleming and dated 27 January 2015. It was subsequently served on the claimant at HMP Norwich when an IO attended there on 30 January 2015. 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'', with a ``chaser email'' being sent on 9 February 2015. At a visit by IO Champion on 4 February 2015 the claimant stated that he did not want to return to Lithuania and had a UK-born child from whose mother he was separated, about whom IO Zabardast had by 11 February 2015 asked for more details.

  7. On 9 February 2015 the claimant wrote a letter to the Secretary of State from prison asking for further time to respond regarding the proposed deportation, and identifying two ``reasons I feel I should not be deported''. The first reason concerned his son, born on 1 February 2014, who ``is my first child and ... having a relationship with him is the single most important thing in my life'', and ``if I am deported my relationship with him will be very difficult to maintain''. The second reason concerned the claimant's record working in the construction industry in the UK, paying taxes and never taking benefits. On 12 February 2015 the claimant returned a questionnaire (form ICD.0350 EEA) giving details including as to his son and work. A reference (11 January 2015) from a Landing Officer at the Prison stated that the claimant ``consistently receives positive entries from education staff and wing officers'' and had ``managed to attain his enhanced IEP status due to his positive attitude and willingness to interact and progress''. On 16 February 2015 the Secretary of State's bail team wrote to the claimant refusing his application for support (ie. an accommodation address) under section 4 of the Immigration and Asylum Act 1999. On 18 February 2015 the Secretary of State received the JSR, which described the following aspects of the individual circumstances: (i) the claimant had gone to an address with three others to confront the occupiers, taking an imitation firearm (BB gun) so that...

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