England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		4 July 2006

1. MR JUSTICE NEWMAN: This case raises an issue arising out of the admitted delay on the part of the Home Office to implement the claimant's return to Antigua under statutory provisions designed to facilitate the early removal of foreign prisoners from prisons in the United Kingdom. It is a scheme known as the Early Removal Scheme. The claimant was at all relevant times amenable to deportation under Section 3 (6) of the Immigration Act 1971, and, so far as possible, the Prison Service, acting under instructions which had been issued by the Home Secretary, had done all it could do to implement the scheme. But two parts of the Home Office play a role in the operation. Apart from the Prison Service, the Immigration and Nationality Directorate(IND) carry the other part of the responsibility. IND did not act in connection with the claimant's case, despite referral from the Prison Service, until after judicial review proceedings had been issued by him.
2. The timetable of events is as follows: on 25 May 2005 the claimant was sentenced to 3 years' imprisonment for the importation of class A drugs. He was recommended for deportation. For that reason he therefore came within Section 3 (6) of the Immigration Act 1971. On 12 December 2005 the Criminal Casework Team (CCT) of IND received a completed ERS 3 form confirming his eligibility for deportation under the Early Removal Scheme applicable to persons liable to removal from the United Kingdom. Nothing was done. On 25 February 2006 a fresh ERS form was submitted to CCT.
3. I shall need to turn to the statutory provisions, but under those provisions the claimant's eligibility date was 23 February 2006. On that date the period of eligibility for his removal from the United Kingdom began to run and, in his case, ran for 135 days from that date. Therefore under the statutory provisions the claimant ceased to be eligible under the ERS on 22 June 2006. No steps at all, save for those taken by the prison, having been taken in connection with the case or at least any to which the claimant was made aware, on 18 May 2006 he commenced these judicial review proceedings. On 23 May 2006 Mr Justice Calvert-Smith granted permission. On 25 May 2006 the claimant availed himself of the formal complaint procedure in prison to lodge a complaint in connection with what he stated was the failure to process his early removal, as he would have wished it to be, this being a case in which he was not simply amenable as a matter of law to deportation but he was willing and desirous of being deported back to Antigua as soon as he possibly could be.
4. As a result of the permission granted by Mr Justice Calvert-Smith, the matter was ordered in as a matter of urgency and came before me on 8 June. For reasons which do not need to be gone into in detail, but, broadly speaking, because the nature of the case for the claimant was then taking on a different appearance, the proceedings were adjourned until 22 June to enable the Secretary of State to consider the claimant's fresh argument and to serve evidence if he so wished in connection with the delay which it is admitted had occurred and which counsel on his behalf had informed the court was seen by the defendant as regrettable. It was obvious to the court that by that time the processing of the claimant's case had indeed commenced.
5. The court was informed that he would be deported before the expiry of the eligibility period, namely before 22 June, and indeed the court learned on 22 June that he had been deported the day before, on 21 June. There was by that time a witness statement from Hannah Honeyman, a senior executive officer employed as a member of CCT as the caseworker, who had conduct of the matter on behalf of the defendant. But, as I have indicated, time was given for the Secretary of State to consider the position generally.
6. On 22 June 2006 the legal argument had been brought up to date on both sides so far as counsel had seen it fit to argue the matter, but there was no detailed evidence at all from the Secretary of State explaining the delay. It was apparent to the court, after the claimant had commenced his argument, that the possible application of the principle of legitimate expectation to the facts of this case had not been addressed and, as a result, it was decided to adjourn the matter yet again until today in order for the parties' counsel to consider as they saw fit the issue of legitimate expectation and also for the Secretary of State, as advised, to consider whether to lodge evidence explaining the delay.
7. The matter therefore comes before the court after some delay with, as I am satisfied, all the relevant arguments having been marshalled and addressed and the relevant evidence before the court for it to consider the position.
8. The general background is as follows, that a person who is not a British citizen who is convicted of a criminal offence is liable to deportation from the United Kingdom if -

"The Secretary of State deems his deportation to be conducive to the public good, or

.....

(b) another person to whose family he belongs is or has been ordered to be deported .....

.....

(6) Without prejudice to the operation of sub-section (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so. (See Section 3 (5) and Section 3 (6) of the Immigration Act 1971)."

It should be pointed out that the powers of the Secretary of State to deport commence with the 1971 Act, and it is manifest that the powers of deportation extend to a number of people on different grounds and not always simply because they are someone who falls within Section 3 (6).

9. A recommendation for deportation is an important part of this case and to a certain extent an important aspect of the way in which the scheme can operate because it can give rise to a fast-track procedure for the removal of foreign criminals. A recommendation for deportation by a court forms part of the sentence of the court and it can be the subject of an appeal by the offender. The court, when making a recommendation, has to give full reasons for the decision in order to assist both the offender and the Secretary of State when he makes the ultimate decision as to whether to proceed with the deportation. The principal factor to which the criminal court has regard when making a recommendation is the potential detriment to the country if the offender were to remain. It is not concerned with the immigration status of the offender and related aspects in connection with immigration issues. That again is important because those are matters which are for the Secretary of State.
10. In the criminal courts it is accepted that a sentence of imprisonment which has to be served by a non-British citizen, having no relatives here, can give rise to a particular hardship for an offender. It follows that in many circumstances an offender, should the opportunity be available, would rather be returned to his home country than complete his sentence within the prison system here. That said, there is obviously a public interest in non-British citizens convicted of an offence here being punished here. Thus it is that an adequate period of time by way of punishment is served in prison and thereafter the question of the public interest involved in the removal of that person to their home country arises. According to the facts and circumstances, the earlier the date, it could be said, the more in the interests of all concerned the better.
11. As is well known, the concept of early release on licence from a custodial sentence is generally something which is generally applicable to prisoners in this country, but until the passing of the Criminal Justice Act 2003 (the 2003 Act), foreign prisoners were not eligible for early release. Thus those liable to deportation at the end of the custodial portion of their sentences remained in prison. The change in policy occurred with the passing of the Criminal Justice Act 2003. This was done, first, by a somewhat complicated means of modification of existing statute, namely the Criminal Justice Act 1991, but it now operates in accordance with specific provisions, not in accordance with an appendix to the Criminal Justice Act. (See Section 259 and thereafter of the 2003 Act). The statutory provisions, so far as they affect this claimant, are those which are set out in Schedule 20 of the Act, which inserted section 46A and 46B into the 1991 Act.
12. The rationale behind the ERS, as it appears from an extract from Hansard attached to the statement of Hannah Honeyman, is as follows. Baroness Scotland introduced the amendments to the Criminal Justice Bill on 5 November 2003. She stated:

"My Lords, this group of amendments deals with foreign national prisoners who make up a rising proportion of the prison population. About 800 foreign national prisoners are deported or otherwise removed each year. Those liable to deportation, at the end of the custodial portion of their prison sentences are currently ineligible for the early release arrangements"

that is a reference to home detention curfew -

"available to other prisoners. The purpose of these amendments is therefore to introduce an early removal scheme for the group of prisoners. Eligible prisoners will be deported up to a maximum of 135 days early depending on sentence length. The scheme will save a small number of prison places but, as importantly, it will provide fairer release and removal arrangements for prisoners who are ineligible for the early release provisions available to other prisoners."

13. Mr Jones for obvious reasons - and to which I will come in a little detail later - relies in particular on that statement from Baroness Scotland as disclosing the purpose of the legislation and in particular a purpose which was designed to be for the benefit of prisoners. His reason for so doing being that, if there is a statutory provision which is for the benefit of a class of individuals then, he submits, the construction or interpretation of that provision ought to pay regard to that purpose and in particular to any obligations which should be seen to be included within the implementation of that purpose. Since the claimant committed an offence prior to 4 April 2005 his case is governed by the modifications.
14. So far as the provisions are concerned, they are lengthy and I therefore will endeavour to cite only those which are particularly pertinent:

"[Section] 46A .....

(1) Subject to sub-section (2) below, where a short-term or long-term prisoner is liable to removal from the United Kingdom, the Secretary of State may under this section remove him from prison at any time after he has served the requisite period."

Sub-section (2) contains some exemptions or exceptions from the operation of the provision but continues in sub-section (2) (e) to state:

"(e) the interval between -

(i) the date on which the prisoner will have served the requisite period for the term of the sentence, and

(ii) the date on which he will have served one-half of the sentence,

..... "

Down to (e) there are a number of exceptions. Sub-section (3) provides:

"(3) A prisoner removed from prison under this section -

(a) is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by -

..... "

reference is made to the Immigration Act and the Immigration and Asylum Act.

"and

(b) so long as remaining in the United Kingdom remains liable to be detained in pursuance of his sentence until he falls to be released under Sections 33 or 35 above."

Sub-section (4) provides:

"So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under Section[s] 33, 35 or 36 is exercisable in relation to him as if he were in prison."

Sub-section (5) sets out the calculation as to what amounts to the requisite period, sub-section (5) (c) being -

"(c) for a term of 18 months or more, a period that is 135 days less than one-half of the term."

The section also provides that -

(6) The Secretary of State may by order by statutory instrument -

(a) amend the definition of 'the requisite period' ..... [and]

(b) make such transitional provision as appears to him necessary or expedient in connection with the amendment."

15. It is common ground that but for the provision of the 2003 Act the powers of the Secretary of State to remove someone from the United Kingdom as provided for in the Immigration Act 1971 could not have given rise to the early removal of the claimant.
16. The issues in this case have been argued by reference to the statutory provisions to which I have briefly referred and also by reference to close consideration of a prison service order - PSO 6000. PSO 6000 is headed Parole, Release and Recall. Chapter 9 is concerned to deal with early removal scheme, parole for those liable to deportation. As is well known, the Home Office issues instructions to the Prison Service containing guidelines and directions in connection with the running of the Prison Service. These directions are generally issued by the Secretary of State, not simply in relation to, as will be obvious, matters such as this, touching the removal scheme or deportation, but touching all the affairs which affect the Prison Service in the management of prisons on behalf of the Secretary of State.
17. This PSO 6000 is dated 31 March 2005, and it had been revised to reflect the changes introduced by the 2003 Act. Again as is well known, prison service orders, save where they contain confidential information, are published and - at least published and available - the contents are therefore available to those who have an interest in seeing them. In that regard, prisoners are an obvious category, having such an interest. The scheme of the order is, as the context would suggest, the context of laying down, by way of guideline and direction, instructions to the Prison Service and those operating the Prison Service as to what they should do in connection with those who are foreigners liable to deportation. It places the responsibility, first of all, upon parole clerks at prisons. Parole clerks must automatically consider for removal under the ERS all deportees as defined in the PSO serving a determinative sentence of three months and over and due to be released under the Criminal Justice Act 2003. The stated purpose of the parole clerks performing their function of considering a prisoner for release is that they must (1) identify deportees and (2) notify the IND within the timescale set out in chapter 9. Further parole clerks are obliged to notify deportees if they are not going to be removed or be beneficiaries under the scheme.
18. By way of general summary rather than by reference to specific timetables or parts, the order makes it plain that the governor of the prison must participate, and in particular he must consider whether the conduct and behaviour of the prisoner has been appropriate. The system proceeds on the basis that deportees who are not statutorily outside the scheme, namely that part of the sub-section of the provision which I referred to, are presumed suitable for ERS, but it is for the governor to approve early removal and the decision of the governor must be communicated by the parole clerk to the deportee and to the IND.
19. So far as the details of the operation of the mechanics of the ERS are concerned, they involve the use of forms, namely ERS 1 or an ERS 2B and ERS 3. Although all prisoners who appear to be liable to deportation or removal and are serving a sentence of three months or more must automatically be considered for removal unless they are statutorily exempt, it is plain that removal under the scheme takes place in accordance with the exercise of a discretionary power exercised by the Secretary of State. That is important firstly for consideration of the legal argument which has been raised in this case and for the observation that can be made, namely that a deportee cannot himself opt out of the scheme. As soon as an offender has been identified as someone who appears to be subject to deportation or removal from the United Kingdom by the parole clerk, the Custody Discipline Office must calculate the eligibility date under the ERS. The governor then starts to complete form ERS 1. In order to find out whether a deportee can be removed parole clerks then contact IND using ERS3. As I have observed, the period in which a deportee can be removed extends from the eligibility date until two weeks prior to the half-way point of the sentence.
20. The PSO contains an appendix, 5A, a detailed form of process designed as a chart which is put out for the benefit of the Prison Service and in accordance with which they are exhorted to act. In simple terms, that which the Prison Service needs to do is, according to the timetable, to be commenced, as it was in this case, some 13 weeks before the date which has been calculated as the eligibility date, namely the commencement date of the eligibility period. Within that period of time it is apparent from the PSO that the timetable is designed to bring about a position in which the prison has acted, the matter has been put over to IND at the Home Office for them to act, and that a decision can be made for the removal, that decision being the decision of the Secretary of State at or about the date upon which the eligibility period begins to run. That is the basic running concept which the PSO seeks to establish.
21. Because Mr Jones has emphasised certain parts of the contents of the PSO, in fairness to him, I should set them out as I go through the document. He draws particular attention to paragraph 9.1 and a key points box which appears as bullet points on that page in which it is stated that -

"• All deportees ..... must automatically be considered for removal under ERS, unless they are statutorily exempt. Parole clerks must identify deportees and notify the Immigration and Nationality Directorate (IND) within the timescales set out in this chapter."

There are certain exceptions. The next passage under the same key point section is:

"• All other deportees will be presumed suitable for ERS and, where appropriate, parole, unless there are exceptional and compelling circumstances. The decision to approve early removal and/or parole for these prisoners must be taken by a governor and the parole clerk must notify the deportee and IND of the governor's decision.

.....

9.3.1 It is essential that establishments must, on reception of the prisoner, promptly identify whether they meet the definition of a person liable to removal from the UK as defined .....

.....

9.5.2 The ERS is designed closely to resemble the HDC [Home Detention Curfew] scheme but there are some differences .....

.....

9.5.16 As soon as a deportee has been identified as subject to removal from the UK, the Custody/Discipline Office must calculate the ERS eligibility date. This date is determined by the length of the sentence and must be calculated as set out below ..... "

There is a box there. There is a particular section - 9.6 - which is devoted to the presumptive consideration cases.

"9.6.3 Under the presumptive scheme, unless the deportee is statutorily exempt, cannot be removed, or is subject to further custodial requirements (see above), governors must approve the deportee for removal under the ERS and/or release on parole unless they are aware of exceptional and compelling reasons to refuse. Examples of the kinds of issues which might provide exceptional and compelling reasons for refusal include -

clear evidence that a prisoner is planning further crime, including plans to evade immigration control or return to the UK unlawfully;

evidence of violence or threats of violence, in prison, on a number of occasions; ..... "

Then there are other examples of misbehaviour or misconduct in prison. Particular attention has been drawn to paragraph 9.6.7 which is under the heading "Presumptive ERS/parole timetable and process" which reads:

"The flow charts for considering whether a deportee should be presumed suitable for removal/under ERS and/or released on parole is set out in Appendix 5A and 5B. The timetables must be followed closely when processing the cases. Please note that, in cases where a deportee is serving a sentence of under 5 months, the case should be dealt with expeditiously, in order to ensure that a decision is reached before his eligibility for removal under the ERS."

Particular reference is made to that by Mr Jones because while he accepts he is not entirely clear what it means, he emphasises that it contains the concept expressly emphasised of dealing with matters expeditiously and in order to ensure a decision is reached before his eligibility for removal under the ERS, which he says is a reference to the eligibility date calculation and not to the ultimate removal.

22. The receipt by IND of form ERS 3 gives rise to the need on the part of IND to decide whether to make a deportation order. There may be many reason why a deportee cannot be removed: for example, he may be liable to administrative removal; there may be an outstanding immigration appeal; there may be no travel documents; there may be custodial requirements which have not been met; there may be outstanding criminal charges. There are therefore reasons why prisoners cannot be removed. Form ERS1 is completed and signed by the authorising governor when he receives the ERS3 back from IND indicating IND's decision. Once the authorising governor has authorised removal the deportee must be notified with a copy sent to IND and removal directions will then be set by IND and removal will follow as soon as possible thereafter. The witness statements, both from Hannah Honeyman and Tiffany Castle, explain the operation of the system in detail.
23. Having covered it in the way I have, I do not propose to refer to any more matters, save these, that it is clear from the evidence that the suggested timetable for a reply from IND, once they have received the ERS3 form from the Prison Service and the authorisation of the governor, is said to be seven weeks. On the evidence there is an indication that an even lower target was set, namely of some five weeks. Once a decision has been taken to remove a claimant under the scheme, the removal is expected to take place within seven to ten days.
24. I should set out, since later I shall need to make reference to parts of it, some of the statements in Appendix 1 to PSO. Appendix 1 is headed "Note by the Immigration Service prisoners liable to deportation/removal from the United Kingdom". It is to be noted - although in my judgment the weight to be attached to it is not quite as much as some of the arguments of Mr Jones suggested - that there are two parts of the same Department of State operating here together, namely the Prison Service and the Immigration and Nationality Directorate. The distinction is perhaps of its most noteworthy character in connection with Appendix 1 because it is headed as a note by the Immigration Service, and it is an appendix which is designed to set out, for the information of the Prison Service and those who have an interest in the contents of the order, guidance on the Immigration Service's policy and procedures when considering the deportation and administrative removal from the United Kingdom of foreign nationals convicted of offences.
25. Under the heading "Policy" the following appears:

"The Immigration Service's policy is that in all case (including life sentence cases) where deportation/removal is the right course, all necessary action should be completed as early as possible in a prisoner's sentence, so that deportation/removal may be [e]ffected at the earliest opportunity. In deportation cases, however, the Immigration Service must wait until any appeal against sentence or conviction has been set aside and even then it is not legally allowed to commence proceedings until twelve months before the first possible release date. Administrative removal cases may be processed at any time. It is therefore regrettable that some cases may not be completed in time for the prisoner's release date, for example where a sentence was reduced significantly on appeal or is particularly short or where notification of the conviction was received late."

In a later section of this appendix, under the heading "Delays", the following appears:

"Despite best endeavours, cases will arise from time to time where arrangements have not been completed for a foreign national prisoner to be deported or removed on the date set for his/her release. Reasons for delays are numerous but may include the late notification of a prisoner to CCT, the submission of a late appeal or application to be allowed to remain in the United Kingdom by the prisoner, the unavailability of a travel document or the unavailability of a seat on a certain flight."

Under the heading "Oversights" it states:

"There may be cases where the prison is aware of Immigration Service's interest, but, shortly before release is due, has received no advice/instructions about removal arrangements or whether continued detention under Immigration Act powers is to be authorised. So that such cases are not overlooked, the prison must draw the attention of a senior caseworker or Immigration Inspector ..... to them no later than 2 weeks before the expected date of release. By the same token, where a person has been detained under Immigration Act powers, the prison must contact the CCT ..... "

The delays in the claimant's case

26. Counsel for the Secretary of State, at an early stage, referred to the delays which occurred as regrettable. It is plain that the timetable envisaged by the PSO 6000 has not been complied with. Reasons for the delay and failure to comply with the timetable have now been set out in the witness statement from Tiffany Castle, the Deputy Director, employed in the Home Office Immigration and Nationality Directorate and a member of the CCT. She explains that referrals from prisons are prioritised according to the ERS eligibility date, and that it is for the ERS team to determine whether or not there are any barriers to removal or deportation from the United Kingdom under the ERS within the timescales envisaged by PSO 6000. That said, she puts the matter thus:

"However due to the imbalance between the volume of referrals from prisons and the resources allocated to this work it is not always possible to meet the timescales envisaged by PSO 6000. If possible, the ERS team aim to inform the governing governor of any barriers to removal or deportation before the ERS eligibility date has passed but again this is not always practicable.

In 2005 6,200 referrals were received from the Prison Service. So far this year, 4,400 ERS referrals have been received from the Prison Service. Until mid-February 2006, the ERS team consisted of 6 members of staff. There are now 12 members of staff (3 of whom work part time)."

27. So far as the claimant's case is concerned, she says that no progression of the referral which was made in 2005 was made as a consequence of insufficient resources. She adds:

"The resources and processes of the ERS team are being reviewed with the aim of improving its effectiveness."

As to the referral made on 26 February 2006, she says the CCT has no record of it. It is not disputed that it was made. She refers to the fact that -

" ..... ERS 3 referrals are sent to the ERS team directly and can be sent to a number of fax machines in different parts of the CCT. All staff are aware that such referrals should be passed immediately to the ERS team. Unfortunately this did not happen in the present case. Regrettably, in this case, the referral in December 2005 was not actioned at all; the referral in February 2006 did not reach the ERS team at that time, at least insofar as it cannot be confirmed when it was placed on the relevant file. Steps are being taken to improve communication between prisons and the ERS team to ensure all ERS referrals are sent directly to them in order to allow them to act as promptly as possible."

The legal argument

28. The proceedings were issued relying on two grounds: (1) that there had been unreasonable delay in deciding to remove the claimant pursuant to the ERS; (2) the client's detention beyond the appropriate period was unlawful on common law principles and was contrary to Article 5 of the European Convention on Human Rights.
29. The argument for unreasonable delay appeared to depend on an argument that the statute created "an obligation requiring early removal". In my judgment, the formulation of the statutory obligation in those terms was plainly not correct. The relevant provision is drafted in classic permissive terms by way of the conferment of a discretion upon the Secretary of State. It is plain that the Secretary of State should action such requests as he receives under the scheme and indeed that he should do so within a reasonable time. But what constitutes a reasonable time is, as Miss Neenan submitted, always dependent upon the circumstances of the case. The mere fact that the application was not processed as expeditiously as the applicant wished, in my judgment, does not necessarily give rise to a case of maladministration and nor does it give rise to a circumstance in which it can be demonstrated that there has been unreasonable delay in cases such as this. More appropriately, as I shall suggest later in this judgment, one must move on to consider what is the correct formulation of the legal obligation which the statute imposes on the Secretary of State.
30. So far as the argument as to the legality of detention is concerned, it is sufficient to say perhaps that that for various reasons has quite rightly, in my judgment, passed out of the ambit of consideration. It is plain from the sections to which I have already referred that save for the purposes of removal from prison in accordance with these early removal provisions the claimant and all prisoners remain liable to be detained in pursuance of their sentence. In my judgment it is plain, as indeed Mr Justice Wilkie held in the application of Alem v The Secretary of State for Home Department [2006] EWHC Admin 899, that it is impossible to spell out of these provisions the conclusion that there can be unlawful detention of a prisoner owing to some failing which can be identified in the Secretary of State's conduct so far as the scheme is concerned. Reference has been made also by counsel for the Secretary of State to R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19 where the prisoner's detention became unlawful because she was detained for 59 days after her conditional release date. That was in a case where there was no dispute that there was an entitlement to release. As I have indicated, provisions governing this exercise of power are quite different.
31. In my judgment, too, the matter is made clearer by what has fallen from Lord Justice Richards in the application for permission to appeal in Alem where he observed, when dismissing the application, that there was nothing arguable in connection with the claim for damages and unlawful detention.
32. So far as Article 5 is concerned, the critical factor again is that for all relevant purposes the claimant has remained lawfully detained after his conviction by a competent court, and he continues to be lawfully detained by a competent court until a decision is made to deport him.
33. When, as I have indicated, on 8 June, it became apparent that this was not necessarily the extent of the argument, the argument was refined or at least explained by Mr Jones. He submitted that the position was as follows, that there was a discretion but that the discretion was accorded by this statute not to the assessment process which I have summarised but essentially to the last stage of the process where uncertainty from matters beyond the control of the Secretary of State can prevent removal. He submitted, as examples, outstanding applications or appeals for leave to remain or the absence of travel documents, restrictions on flights and so forth. These matters plainly gave cause for Parliament to confer a discretion to provide flexibility to take account of these matters. But he submits that the discretion cannot properly be interpreted as extending to the assessment stages which lead up to the decision of the Secretary of State to remove. Thus, put another way, the discretion is there in order to deal with the peculiar complications potentially attendant upon the implementation of the removal process. He did, to a limited extent, accept that there was a discretion to the determination of eligibility but, as the argument developed, it would seem that what he meant by that was that eligibility was to be determined strictly in relation to the scheme and therefore again the discretion was heavily circumscribed.
34. For convenience, I will deal with that submission now. I am wholly unable to accept that the word "may" in the section is directed to any particular stage of what may be involved in the process deportation. The Act is silent about the process to be adopted. It is specific insofar as it defines the eligibility period by reference to a commencement date and finishing date. It is left to the Secretary of State to implement the system and he must do so as he chooses, and he must do so by publication or the making of any policy that he considers desirable for the implementation of the system. That does not mean that he cannot implement the system. He must exercise his powers, namely his discretion, first, in accordance with law and obviously for the purpose for which the power was conferred and not for any extraneous purpose. Nor - if it was relevant, not arising on the facts of this case - would it be permissible for the Secretary of State simply to refuse to exercise his powers under the scheme.
35. In essence therefore one moves as one considers these arguments closer and closer to what is the core of the matter, namely, for what purpose has Parliament conferred this discretion upon the Secretary of State?
36. The next stage in the development of the argument for the claimant was as follows, that the statutory obligation which the Secretary of State had was one which required him to implement the ERS, namely that he had to implement the timetable laid down in PSO 6000 or, put another way, to achieve removal at the earliest opportunity after the eligibility date had occurred, namely the commencement of the eligibility date. Those arguments were developed before the court today orally and by reference to a detailed skeleton argument, for which I am grateful, and I commend Mr Jones for his help. I hope, doing justice to the detail, one can identify the following steps in these arguments. They are: (1) that the statutory provisions establish a clear framework within which the power is to be exercised; (2) that the true intent and purpose of the enactment has to be identified, and once it is identified it is that which provides the legal parameters surrounding the exercise of the discretion.
37. As to the second point, there can be no dispute. Plainly it is important when considering the exercise of any discretion to consider for what purpose the discretion was conferred.
38. As to the first point, namely the statutory provisions establishing a clear framework within which the power was to be exercised, I am unable to agree. He had to accept that the only dates referred to are the ones I have indicated, namely the beginning and ending of the relevant period (the eligibility period). But having made that concession, there was little left for him to gather from the provisions themselves and so he was driven in effect to go elsewhere for material which he says would demonstrate the detail or character of the time frame within which the Secretary of State must act. He put the matter thus. He said that ministers in the course of official debates before the Houses of Parliament - and in particular the ones to which I have referred, namely Baroness Scotland - established that the ERS was introduced as an equivalent of the HDC and that its object, in large part, was to achieve equality between domestic and foreign prisoners who were ineligible for HDC while providing the latter with fairer release and removal arrangements and, as an added corollary, relief to pressure on the Prison Service from overcrowding. Thus, he submitted, the scheme was designed to enable early liberation from custody and to defeat inequality existing by virtue of a distinction founded upon nationality.
39. Thus, he said, the scheme impacted upon two fundamental rights supporting the contention that there was compulsion on the Secretary of State to operate the ERS effectively and expediently and that in failing to do so he ran the risk of impacting on an individual's core rights. He says that the case for the Secretary of State being required to act expeditiously is also discernible from the policy statement in the PSO 6000, to which I have referred, in particular that reference to absent, exceptional or compelling circumstances, all eligible prisoners will be presumed suitable for ERS. He says that the existence of a mandatory requirement on the Prison Service to initiate the process and to endeavour to conclude it all by the ERED date was yet another pointer towards the need for and purpose of expedition. He submitted, in effect, that the PSO document should be classified or regarded by the court as having the status of an official statement from the government department in connection with its enactment, which was to amount to persuasive authority on the legal meaning of the Act. He submitted this was, too, borne out by considering another principle of interpretation, namely the likely consequences of adopting an alternative construction.
40. He said all these factors were telling factors leading to the conclusion that the law required the Secretary of State to act in accordance with, if not, the timetable then to act expeditiously so as to bring about the earliest possible removal of the foreign prisoner. The public interest he referred to was another governing factor to lead to this conclusion.
41. Finally he formulated the matter in this way, that the Secretary of State is obliged, either by virtue of a statutory duty or alternatively pursuant to a proper application of his discretion, to implement the ERS scheme in a timely manner so as to give the maximum advantage to an eligible prisoner, enabling determinate nature of eligibility and removal from prison at the earliest point on or after the ERED and thereafter effect removal from the United Kingdom expeditiously. He submits it is perfectly plain that on the facts of this case the Secretary of State failed to do that.
42. Despite the care he has shown in drawing these points together in order to make out his case as to either the meaning of the Act or the obligation to which the discretion gives rise, I am satisfied, when drawing them all together as he has done, they simply do not go to make the essential legal structure which he says they provide. It is important, as I indicated at the outset, to remember that the Secretary of State's powers in connection with deportation commence with his powers under the 1971 Act. It is undoubtedly true that the introduction of these provisions by way of amendment into the law by the 2003 Act were designed to give him a power which could be exercised in favour of foreign prisoners so as to accord to them and to the public the advantages to which I have, from time to time, already referred. But the 2003 Act is silent as to these matters.
43. The substance of the argument is, in effect, driven each time back to PSO 6000, and thus, in my judgment, it is essential to have in mind the true character of that order. They are instructions to the Prison Service. They are issued in the interests of the best management of the Prison Service and they are issued, as a result, in the interests of prisoners. But they are by their nature and character instructions from the Home Secretary to a branch of his Department of State. They are drawn up so as to achieve standards of administration which he wishes his department to achieve. They are not part of statute. They are not issued in accordance with any statutory power under this statute. They do not have a status over and above their origin as a PSO, save only to the extent that they are capable by their publication and by their contents as being capable of giving rise to legitimate expectations on the part of prisoners as to what will occur in connection with cases covered by the PSO. Importantly, the PSO contains Appendix 1 which is the only part of PSO which can be clearly characterised as containing a policy. The information is of course given for the benefit of the Prison Service. But the Secretary of State was not bound by the Act to issue the Prison Service Order, nor was he bound to lay down a timetable, and nor was he bound to state his policy.
44. In my judgment the true effect of the statutory provision and what has been done hereafter by the Secretary of State is that Parliament has conferred a power on the Secretary of State which enables him to give effect to the desire expressed by Parliament for provision to be made for the early removal of foreign prisoners. The statute itself is notable for not involving itself in any detailed scheme. As a matter of construction, I accept that the Act is a facilitator of the scheme and not its source.
45. The resort, in effect, which Mr Jones has had to the PSO material for the purposes of interpreting the statute is, in my judgment, inadmissible. The statute is clear and it does not require the resort to such material. The starting point is that there is no obligation on the Secretary of State to release a deportee early or at any date. The starting point is that he has a discretion to do so which, as I have indicated, must be exercised in accordance with the law and in accordance with the purpose for which it is conferred. The statute does not impose any duty on the Secretary of State to exercise his immigration powers in any particular way or at any particular time, save for the period of 135 days which is the period in which somebody is eligible for early removal. That is not a period which has any significance for the purpose of the claimant's case because albeit he was actually removed on the last date of the period, he was removed on that date and within that period.
46. The Act does not concern itself with the assessment process. It does not require the implementation of a scheme.
47. This case, as it has been argued by Mr Jones, centres upon the Secretary of State achieving removal through the considerations which IND have to give to the matter and he has to give to the matter within a particular time frame. In my judgment, the Act itself does not provide support for that legal duty; and nor can that legal duty be engrafted on to the section by reference being made to the PSO.
48. Thus I turn to legitimate expectation. This area of the case, as I have recited it, had not been addressed when the matter was last before me, and in my judgment it was necessary that it should be. As it happens, as a result of it being addressed, the fact that a legitimate expectation is capable of being found to exist by reference to the sections and to the material, in particular the PSO, is not now in issue. The question which is in issue is the content of the expectation to which that material can properly be said to give rise.
49. For convenience, in the course of the hearing counsel assisted the court to identify some four stages in the process. The following are identified: (1) referral to IND by the Prison Service; (2) determination of eligibility for removal by IND; (3) the governor's determination as to whether there are any exceptional circumstances preventing removal; and (4) IND setting the date for removal.
50. Mr Jones submitted that there was a legitimate expectation which he had made good in law for eligibility being a matter which would be assessed and that there was a procedural expectation, if not a substantive legitimate expectation, that that process would achieve stage 3 on or before, or not long after, the eligibility date for the commencement of the period of eligibility. He said there was then a substantial expectation that removal would be after the eligibility date or as soon as possible thereafter. He said unless there were reasons - and he identified them and I referred to them earlier - for removal being held up, for example, flights and so forth, then removal had to be as soon as possible after that date. All that led, he submitted, to the legitimate expectation that the timetable which was talked of and laid down in the PSO would be adhered to. He submitted that in answer to that case, what was now being advanced, namely a lack of resources, was simply no answer. He said it was no answer to a case of legitimate expectation which, if he had made it out, could only be rectified by the matter being qualified by the Secretary of State, namely stating that circumstances had arisen which prevented him doing that which was otherwise to be expected of him.
51. I am bound to conclude on the facts of this case that the stated expectation set out by PSO 6000, and to the more limited extent by Parliament so far as there was talk of expedition, has not been achieved. That undoubtedly is a cause for general concern because it is capable of giving rise to widespread misunderstanding. In particular it is capable of giving rise to widespread misunderstanding on the part of prisoners. The claimant in this case became concerned. He was driven to make a formal complaint within the prison system because he, as the system had envisaged, had been kept informed of his case and he had reason to believe that he would be released at an early date. His case was met with the inactivity which I have recorded. Thus the prisoners, and, to a certain extent, any interested member of the public who might have been led to expect or at least hope that these aspirations would be achieved, might, in the absence of anything being said to the contrary, have believed that they were being achieved. To that extent, but this is not a matter of law, it is purely a matter for the Secretary of State to decide whether he wished to explain that the system was not operating in the manner in which it had been envisaged because of a shortage of staff or resources or whatever.
52. But it seems to me clear that as the scheme was implemented and as the referrals were made by the Prison Service in the number to which I have made reference - and Miss Castle refers - there was insufficient staff available in the CCT to process the referrals. It must have been known by the staff there and managers - and must have been realised by those concerned - that the scheme was not in fact being operated as everybody had hoped.
53. It was no doubt for that reason that in February 2006, as I have seen from documents put before me, that recruitment took place. The complement of the team, which on any basis is quite small, was significantly enlarged. But even then after February 2006 it has to be said the backlog at least was sufficiently great to prevent the claimant's case being dealt with and prioritised, even though his eligibility date had come up in February and expiry of his eligibility period was due to come in June. In this regard, I should make short reference to the fact that there are other cases which are pending in a court in connection with delays in processing. At least one of the cases, unlike the facts of this case, is a case where the processing did not take place as it did here, and in some of the others, so as to lead to the removal within the eligibility period. In at least one case the eligibility period had run before the prisoner was removed.
54. When considering the principle of legitimate expectation it is incumbent on the court to consider whether in an instant such as this the Secretary of State can be said to have made a specific, clear and unambiguous promise to implement the scheme in a particular way. In this case in accordance with the timetable, or, as it is put alternatively, in accordance with all due expedition which should lead to the earliest possible removal of the claimant. Taking the first way in which it is put - largely because in my judgment the second way in which it is put, in itself simply by its formulation, leads to such uncertainty that it is not a fruitful basis for legitimate expectation arising - a promise to do something as expeditiously as reasonably possible is not something which is apt to give rise to a clear and unambiguous promise necessary to found a legitimate expectation. But a promise, if there was one to implement the scheme in accordance with a set and defined timetable, would obviously, if it had been made, be capable of amounting to a clear representation or promise.
55. The difficulty, despite the care with which the matter has been considered by Mr Jones, who has said everything that could be said, properly interpreted, the timetable was an internal administrative direction to the Prison Service. Insofar as it was a statement of policy, it was clear and unambiguous. In my judgment, he did not guarantee, insofar as he stated a policy, that removal would take place in all cases within the particular time frame. Nor is it a case involving a specific promise made to an individual which amounts to a statement of considerations or criteria which are going to be applied in that person's case, nor does it involve a promise to a category of people who are promised that particular criteria will be applied to the case.
56. This policy is sufficiently, in my judgment, clearly hedged about by drawing the notice of the reader to the fact that delays can occur. It cannot be seen as a clear and unambiguous promise that particular delays will be regarded as acceptable and other delays will not. The relevant section under the heading "Delays", importantly, has these words -

"Despite best endeavours, cases will regrettably arise from time to time where arrangements have not been completed for a foreign national prisoner to be deported or removed on the date set for his/her release. Reasons for delays are numerous"

and then the words -

"but may include"

go on to set out and include certain examples. In my judgment, that is not to be construed, as I think Mr Jones was inviting me to construe it, as an Act of Parliament and that I should only construe the general words "reasons for delays are numerous" as though they only extended to cases which fell within the sort of example which followed. In my judgment, the document itself is acknowledging that delays can occur and is making it sufficiently plain that there is therefore no guarantee or promise.

57. Again without perhaps the need for further recitation from it, so it is the same point appears in connection with the section from "Oversights".
58. What then does it, in summary, come down to? In my judgment, Miss Neenan is right when she submits that the PSO 6000 is properly to be regarded as best practice. I would add some minor qualifications to the concept of best practice. It seems to me that the PSO 6000 in its terms and in its aspirations was not only setting best practice, it was also setting out what it hoped would be, in the normal course of things, the practice which would occur. It seems to me that the aspirations in connection with the timetable, so far as they affected the CCT section of IND, were, at an early stage, manifestly beyond that which they had the manpower and resources to maintain.
59. The legitimate expectation which in my judgment was made plain - but this arises as much from the section itself as from the PSO - is that the prisoners would have their case considered within the time frame which the Act had laid down for their eligibility for early removal. It follows that if a prisoner's eligibility for removal under the ERS was not considered by the two branches of the Home Office prior to the expiry of the period during which he could be removed, as indeed could be the case in at least one of the cases pending, then the issue for the court would be whether the consequent frustration of the individual's expectation is so unfair as to be a misuse of the authority's power (see Lord Woolf in ex p Coughlan [2001] QB 213). The position here, by one day, was that the claimant was removed. Thus I have concluded that - properly read and interpreted - the material on which Mr Jones has relied cannot give rise to a legitimate expectation in either of the terms which he has formulated.
60. For those reasons, in my judgment, this application for judicial review must be dismissed.
61. Thank you both indeed. I am sorry to have kept you. I should have said in the judgment that the reason I have given the judgment without reserving is that it seemed to me we had delayed long enough and that in the interests of the other litigants there ought to be a judgment now rather than a reserved one which would have had to be prioritised in the court's list of waiting judgments.
62. MR JONES: I am not sure - forgive me if I have misunderstood the judgment - if you have commented on the Wednesbury matter.
63. MR JUSTICE NEWMAN: Did I not comment on it at the beginning? If I did not, I will certainly deal with it now.
64. MISS NEENAN: I can tell you what I noted down. You referred to my submission of what is reasonable depends on the circumstances of the case, and the mere fact an application is not processed as the applicant wishes does not give rise to maladministration, nor a circumstance in which it can be said to be unreasonable delay; in cases such as this the appropriate thing is to move to consider what is the correct form of legal obligation the statute imposes on the Secretary of State. I suspect it is just prior to that.
65. MR JUSTICE NEWMAN: Thank you. So far as delay is concerned, it has of course been accepted in this case that there has been delay and the delay has been regretted. It is apparent too that it was necessary for the claimant to make a complaint before his eligibility for ERS was considered by the Secretary of State.
66. What one has to ask then is whether the conduct which is evidenced thereby itself gives rise to a case for the delay being so unreasonable that it amounts to unlawful delay and maladministration. The difficulty, in my judgment, to which the argument gives rise is that the statute envisages that there can be removal within the 135-day period, that the desirability of a removal taking place at the earliest possible day is, in itself, something which nobody could suggest is other than desirable, but in my judgment it is not made out that there was a legal requirement for the case to be dealt with in a particular manner or in accordance with a particular timetable within that period. To demonstrate, in my judgment, the fallacy of the argument it would mean that anybody who was in prison whose case had not been proceeded with as expeditiously as he thought it should be could come to court and complain. He would then seek to make out a case that it should have been dealt with at an earlier time, rather on the lines that Mr Jones has advanced in this case, namely the claimant's case was perfectly straightforward, no reason why it should not have taken any more than the 15 days it ultimately took.
67. In my judgment the fallacy of that argument is that the court is thereby introduced into an examination of the function and running of the Department of State, in effect, a management inquiry which it is not the function of the court to perform. The short position is that if there is a case where a prisoner perceives that his case is being subject to unreasonable delay, it is open to him to come to court after such period of delay which he has considered sufficient, and he may or may not make out an arguable case for their correction, there being a risk that his removal will not take place within 135 days. If he makes out such a case then the court will have the power to grant a mandatory order which will ensure that his case is considered within that period of time. Save as to that, in my judgment, the case on delay gives rise to no particular relief.
68. When the transcript comes back to me I shall have an opportunity of looking at the judgment and checking the detail.
69. MR JONES: We ask for a detailed assessment of our costs. I think there is a certificate on the file.
70. MR JUSTICE NEWMAN: You can have it.
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