This is a peculiar case. The Claimant apparently preferred immigration detention in the UK to voluntary return to Poland. Anyone working with detained EEA nationals may be interested in the discussion of the effect of EU law and the Secretary of State’s potential duty to accommodate detainees upon release.
The Claimant was Polish national who had lived in the UK since 2007. He committed a series of criminal offences, the most serious attracting a sentence of 12 months imprisonment. The Secretary of State made a deportation order against him in 2012. Having served his sentence he was detained under immigration powers pending deportation.
His appeal against deportation followed a tortuous route and eventually reached the Court of Appeal where it was dismissed in late 2015. In the interim, the Claimant had brought a judicial review challenge against his detention in 2014, which was refused because he presented an unacceptably high risk of absconding and/or re-offending. He brought a second challenge against both his detention and against the Secretary of State’s refusal to offer him a bail address under section 4(1)(c) of the Immigration Act 1999 (‘IA 1999’).
Then, after nearly 4 years of detention, the Secretary of State realised that the situation had become intolerable and decided to release him ‘into the wilds of Kent’, with no electronic tag and no accommodation address to his name.
The Court decided that the Claimant had been lawfully detained on the facts and the Secretary of State entitled to refuse him a bail address as he could have easily returned to Poland but did not want to.
You might be wondering why the Claimant was detained for so long in the first place at public expense on the basis that he posed a risk to society, only to be released all of a sudden on the bare promise of a reporting condition. For an explanation of why this slightly surreal procedure was nevertheless lawful, read on.
A zip through the judgment offers the following guidance:
- Where a previous judicial review challenge to detention fails and the Court has concluded that detention up to a certain point has been lawful, then in any fresh challenge to detention, events leading up to that point may be relevant to the overall history (and duration) of the detention in question (§ 21).
- Mr Justice Kerr rejected the Claimant’s argument that EU law imposed more stringent safeguards against ongoing detention than the domestic legal principles derived from the case of R v Governor of Durham Prison, ex parte Hardial Singh  1 WLR 704 (‘Hardial Singh’). Before an appeal has been decided on the question of whether the person has any EU law right of residence or free movement, the wider concept of proportionality at EU law adds nothing of substance to the Hardial Singh principles (§ 68 to 70). This is a controversial view and should be open to challenge.
- In certain cases, it may be necessary for the Secretary of State to provide accommodation under section 4 IA 1999 (or other powers) in order to avoid prolonged unlawful detention (§ 77).
- Where an EEA national refuses to voluntarily return to a member state before their appeal rights have become exhausted, this is not only relevant to the risk of absconding and the refusal may justify detaining them longer (§ 88).
- In general, the longer the period of detention, the more willing the Secretary of State should be to accept greater risks in relation to a detainee absconding or re-offending (§ 95). This may sound strange, but it finds support in the established case law (from R (MH) v Secretary of State for the Home Department  EWCA Civ 1112 at § 68(v) to R (Sami Fasayi) v Secretary of State for the Home Department  EWHC 4264 (Admin) at § 33(iv)). Those cases say that while a person’s flight-risk and likelihood of re-offending are highly important factors, they are not ‘trump cards’ and may be displaced by excessively long periods of detention or the lack of any prospects of removal within a reasonable period of time.
- On the facts, the evidence of internal debate and disagreement within the Secretary of State reflected a “healthy concern” to reach lawful conclusions and balance the risk of release against the presumption of liberty (§ 102).
A few more words about two of these points.
The Court gave considerable weight to the fact that the Claimant could easily return to Poland. However, once again, the availability of voluntary return was not to be treated as a ‘trump card’ when the lawfulness of a person’s detention against is measured against the Hardial Singh principles. As such, this judgment applies the robust approach adopted by Lord Justice Toulson at paragraphs 54 and 55 of R (A) v. Secretary of State for the Home Department  EWCA Civ 804.
The Section 4 point
In this case, the Secretary of State was not under a duty to provide section 4 accommodation because the Claimant had the wherewithal to return voluntarily to Poland on his own funds. But it is arguable that such a duty to accommodate may arise where the Secretary of State is prolonging unlawful detention due to the lack of a bail address.
When drafting an unlawful detention claim, it may be appropriate to tack on a challenge to a breach of the duty accommodate (under section 4 IA 1999 or otherwise), for example, where the Claimant detainee is effectively homeless and destitute and the Home Office are still refusing to accommodate.