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R (on the application of ORLANDO POLANCO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The continued detention of an overstayer was not justified on the basis that he posed a continued risk to society as a serious sexual offender. Whilst such considerations initially justified his detention as an overstayer pending deportation they did not, without more, justify his continued detention over a long period of time.

5 May 2009

The claimant overstayer (P) applied for judicial review of a refusal of the defendant secretary of state to release him from detention pending deportation. P, a national of Columbia, had married a Portuguese national and was given leave to enter the United Kingdom as a visitor. P was later granted leave to remain as the spouse of a European Economic Area (EEA) national. He was subsequently convicted on two counts of indecent assault on a girl under 14 years of age and on one count of gross indecency with a child. He was sentenced to two years' imprisonment and, thereafter, obliged to sign the sex offenders register. He was released from prison on licence but his marriage had broken down and he did not continue to live with his wife. They later divorced. P then failed to sign the sex offenders register. An investigation into that failure led to his identification as an overstayer and he was detained pursuant to the Immigration Act 1971 Sch.2 para.16(2), as applied by the Immigration ...

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