Bringing a judicial review claim which is unlikely to be dealt with quickly may render ongoing detention unlawful, according to a Court of Appeal decision.
An EEA national detainee has been awarded substantial damages following a Court of Appeal decision in R (Lauzikas) v Secretary of State for the Home Department [2019] EWCA Civ 1168.
Once the claimant filed his judicial review claim with the Administrative Court challenging his detention, and once the Secretary of State failed to apply for (and obtain an order for) expedition, the claimant was unlikely to be removed from the UK within a reasonable period of time, as required by common law safeguards.
41. …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 the hearing of the judicial review claim was made and such application was granted. It may be questioned whether any such application, if made, would have been granted (it would be necessary to ventilate the question of bail in much the same way as it was eventually ventilated in April) but that need not detain this court. The fact is that no such application was made and without such application it is impossible for anyone to say with confidence that the judicial review proceedings would be concluded within a reasonable time-scale.
In previous cases I've dealt with, the High Court has been unsympathetic to this argument due to the risk of claimants being allowed to 'pull themselves up by their own bootstraps'. The Court of Appeal's approach makes a refreshing change and should result in earlier release from detention in appropriate cases, (assuming that the Secretary of State does not routinely apply for and obtain expedition).
The Court of Appeal did not disturb several legal conclusions by the trial judge, Michael Fordham QC sitting as a Deputy Judge of the High Court, on the nature of the protections from detention afforded to EU nationals under the EEA regulations. In R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin), the Deputy Judge clarified that:
1. the safeguards contained in Article 27(2) of Directive 2004/38/EC ('the Citizens' Directive'), including those relating to 'proportionality' and 'necessity', apply to the exercise of the power to detain (§ 25); and
2. commenting on the effect of these safeguards at § 32, he noted:
It is their very essence to ensure, when relevant power is applied to an individual, it is on a basis which is justified in the circumstances which relate to that individual.'
For now, those helpful observations remain good law.