The Court of Appeal handed down judgment in Lauzikas v SSHD on 9 July 2019. This judgment considered the appeals of both parties from the judgment of Michael Fordham QC (sitting as a Deputy High Court Judge) in Lauzikas v SSHD  EWHC 1045 (Admin).
The most significant finding of the High Court was that detention of EEA nationals must be justified by applying the standards found in Article 27.2 of the Citizens Directive (that is, individualised proportionality and necessity in all the circumstances). On the facts of the case, the High Court had found that the first 24 hours of detention did not breach the Article 27.2 safeguards but the following 28 days did breach those safeguards.
The SSHD did not attempt to argue that Article 27.2 did not apply and the Court of Appeal clearly confirmed that the Citizens Directive “imposes more stringent safeguards on the deprivation of liberty than are available to ordinary foreign national offenders” (para 1). The SSHD had argued however that the Hardial Singh principles provide the degree of protection required by Article 27 and that on the facts of Mr Lauzikas’s case, his detention continued to be proportionate in light of the individual circumstances of the case.
The Court of Appeal agreed with the High Court that the SSHD had discharged the onus of showing that detention satisfied the standards of Article 27.2 for the first 24 hours even though the only information the SSHD held was the offence and sentence received by Mr Lauzikas. The Court of Appeal held that “urgent intrusive action satisfies Article 27.2 standards provided that further information about the offender’s conduct and circumstances is obtained” (para 25) and that “The normal approach is that such further information should be gathered within a reasonable time while recognising that in cases where the liberty of an EEA national is concerned that time may be very short” (para 26).
However, after the first 24 hours, the SSHD did not obtain the necessary documentation relevant to an individualised consideration of Mr Lauzikas’s detention (e.g. pre-sentence report, sentencing remarks) and there was no reason why those documents could not have been obtained by the SSHD within 24 hours. The Court of Appeal agreed with the High Court and found that “urgency was undoubtedly required and, even if the correct approach is to say that these documents should be obtained within a reasonable time that reasonable time, in a case where an EEA national is detained because he is given a sentence that will permit his release but has to be detained for the purposes of protection of the public, is very short indeed” (para 28).
However, the Court of Appeal went on to disagree with the High Court’s findings that Mr Lauzikas was entitled to substantive damages. The Court of Appeal gave several reasons as to why the analysis of the High Court on this issue was incorrect (paras 33-36) and held that Mr Lauzikas was only entitled to nominal damages for that period on the basis that if the SSHD had complied with those standards (that is, obtained the relevant information about Mr Lauzikas) he still would have been detained and also that the period he spent in detention would have been any shorter.
Mr Lauzikas had also appealed the High Court judgement in terms of the period that he had been detained following the lodging of his judicial review on 11 March 2015 and the cancellation of his removal directions on 12 March 2015 until his release on bail on 29 April 2015. The High Court had held that Mr Lauzikas’s detention was unlawful from the date of the SSHD’s detention review on 9 April 2015 following the lodging of the Acknowledgment of Service under Hardial Singh principles in that there was no longer a reasonable prospect of his removal.
The Court of Appeal found that the High Court was “too generous” (para 40) to the SSHD and that Mr Lauzikas had been detained unlawfully for an additional period of four weeks, that is from 12 March 2015 following the cancellation of the removal directions. The Court held that “the state of the lists of the Administrative Court meant, however, that a by no means simple judicial review application was most unlikely to be dealt with in a reasonable time in accordance with the Hardial Singh principles unless an application to expedite was made and such application was granted” (para 41). As the SSHD had made no such application, Mr Lauzikas’s detention was held to be unlawful from the day after his judicial review lodged and when removal directions had been cancelled.
In conclusion, Mr Lauzikas was detained for just over three months from 27 January 2015 until 29 April 2015 – the Court of Appeal found that 11 weeks of that period were unlawful and that he is entitled to substantive damages for the final seven weeks of that period.
Mr Lauzikas is represented by solicitor, Stefan Vnuk, of the Harrow Public Law department at Duncan Lewis Solicitors, and Counsel, Laura Dubinsky and Alison Pickup of Doughty Street Chambers.
The judgments can be found on Bailii:
High Court Judgment of 04/05/18: https://www.bailii.org/ew/cases/EWHC/Admin/2018/1045.html
Court of Appeal Judgment of 09/07/19: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1168.html