England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/11/2012

The Hon. Mr Justice Males:

Introduction

1. The claimant Antonio Serrano is a "foreign criminal" currently serving a sentence of two years imprisonment. Until very recently no decision had been made by the Home Secretary whether to deport him pursuant to the automatic deportation provisions of the UK Borders Act 2007. Accordingly the question whether to release him on home detention curfew ("HDC"), for which he became eligible on 3 September 2012, was made on behalf of the Secretary of State for Justice ("the SSJ") in accordance with the SSJ's current policy regarding HDC as it applies to a foreign national where no such decision has yet been made. This policy, contained in paragraph 2.47 of Prison Service Instruction ("PSI") 52/2011, provides that in a case where a prisoner has been notified of liability to deportation, but no decision to deport has been made, the prisoner "should be presumed unsuitable to be considered for release on HDC unless there are exceptional circumstances justifying release". In contrast to this test of "exceptional circumstances", in the case of a British national serving an otherwise identical sentence, although there must still be a risk assessment and assessment of suitability, the applicable policy under PSI 6700 is that "prisoners must normally be released on HDC unless there are substantive reasons for retaining the prisoner in custody" until his release date. The claimant contends that this difference in treatment constitutes unlawful discrimination on the grounds of nationality.
2. It is the claimant's case that he has a strong case that he is entitled not to be deported because, as a result of his period of settlement in the United Kingdom and the family life that he has built up here, such deportation would infringe his rights under Article 24 of European Union Directive 2004/38/EC ("the Citizenship Directive") and/or Article 8 of the European Convention on Human Rights, so that he is in fact in the same position so far as eligibility for HDC is concerned as a British national prisoner, but that he was deprived of the opportunity to demonstrate that eligibility as a result of a combination of the heavy burden imposed by the SSJ's policy in PSI 52/2011 and delay by the SSHD in making a decision on his immigration status.

The facts

3. The claimant, who was born on 23 April 1976, is a national of Spain. He spent his youth and formative years in Spain, where his parents live, and he has a daughter from a previous relationship living there. He arrived in the United Kingdom in 2007 and has pursued various educational courses here. He is engaged to a British fiancée, with whom he has been in a relationship since about late 2010, who has two children aged nine and eight. He has a place at college to pursue further studies which will be available to him on his release.
4. On 16 January 2012 the claimant was sentenced to imprisonment for two years by the Crown Court at Teeside, following his plea of guilty to producing a Class B drug (cannabis). The sentencing judge, Mr Recorder Goose QC, described the claimant as having been involved in significant large scale but not industrial scale cannabis growing, as part of a commercial process for profit, albeit that the claimant himself was not necessarily making those profits as distinct from knowingly assisting others to do so and consuming whatever cannabis he wanted for himself.
5. The pre-sentence report prepared for the claimant's sentencing hearing assessed the claimant as presenting a low or even extremely low risk of re-offending. Since his imprisonment at HMP Holme House a further OASys risk assessment has been completed which has also concluded that the claimant is at low risk of further offending.
6. On 16 February 2012 the UK Border Agency ("UKBA") wrote to the claimant notifying him that the SSHD took a serious view of his offence and was considering his liability to deportation. UKBA indicated that the claimant should submit within 20 working days any reasons why he should not be deported on completion of his sentence, failing which a decision on deportation would be made on the basis of the information known to UKBA. Such information was provided on 17 February 2012. On 27 March 2012 the claimant was invited to attend a UKBA surgery. However, this did not happen when he was not collected from his cell. On 3 May 2012 the claimant's solicitors wrote indicating that they anticipated problems with release on HDC in light of his immigration status. As a consequence, they asked whether UKBA had been approached for information about his case.
7. On 10 May 2012 the claimant's solicitors wrote to the prison governor making representations regarding release on HDC, for which the claimant would potentially become eligible on 3 September 2012, 135 days before completion of the custodial part of his sentence. They argued that the claimant had a strong argument against deportation "as it would be virtually impossible for the Secretary of State to deport him when it would breach his right to family life (ECHR)". The representations also argued that the presumption against HDC contained in PSI 52/2011 was unlawful because of the difference in treatment between foreign and British prisoners.
8. On 31 May 2012 the claimant's solicitors wrote to the prison governor asking for an update as to whether information had been received from UKBA as to the claimant's immigration status. This led to confirmation by UKBA on 12 June 2012 that deportation was under consideration and that in the event of the claimant's release UKBA intended to detain him. Accordingly, on 13 June 2012 the HDC clerk at the prison wrote stating that UKBA would be reviewing the case in the near future and that, as a consequence, the claimant was presumed unsuitable for release on HDC. There followed a letter before claim dated 21 June 2012, contending that a presumption of unsuitability for HDC when no decision had yet been taken by UKBA in relation to his case and the claimant was "overwhelmingly likely to remain in the UK" was unlawful.
9. On 2 July 2012 a response was received to the letter before claim. This stated that although the claimant was not statutorily ineligible for HDC, in accordance with PSI 52/2011 he would need to demonstrate exceptional circumstances in order to obtain such release, and that because UKBA had advised that it would be issuing an IS 91 to detain the claimant beyond his sentence release date, the question of HDC would not be progressed further.
10. This claim for judicial review was issued on 2 August 2012.
11. On 7 August 2012 UKBA wrote to the claimant seeking information. A response to that request was provided on 12 August 2012, although the response also indicated that "further information as well as references will be available shortly". This indication that further information would be provided was repeated in a letter from the claimant's solicitors to UKBA dated 31 August 2012. A witness statement from Mr Tunji Ogunmisi, the UKBA Executive Officer with conduct of the claimant's case, confirms that as a result of this indication, which was also made orally, no decision on deportation was made pending the provision of this further information, although at some stage, it is not clear when, Mr Chris Boyle, the solicitor acting for the claimant on immigration matters, indicated that all available evidence had been provided and that a decision should now be made. However, Mr Ogunmisi asked for evidence as to the duration of the claimant's relationship with his fiancée, a potentially important matter, which Mr Boyle said he would try and provide.
12. Meanwhile permission to apply for judicial review was granted on paper by James Dingemans QC (sitting as a Deputy High Court Judge) on 31 August 2012.
13. Following service of the claimant's evidence on 3 October 2012 which stated that UKBA should make its decision on the evidence available, UKBA decided to make its decision on deportation. On 1 November 2012 it determined that the claimant should be deported at the conclusion of his sentence and notified him of this decision at some point (the precise date is not certain) before the hearing before me which took place on 6 November 2012. The letter acknowledged that the risk of the claimant reoffending was low, although it also referred to a propensity to re-offend if the circumstances which had led to re-offending in the first place were to recur, but took the view that the public should not be left vulnerable to the serious harm which would be caused in the event of this happening, bearing in mind what it described as the widespread damaging effect of drug use on the lives of many thousands of people addicted to cannabis, on their families and friends, and on society in general. The conclusion was that in all the circumstances the claimant represented a "genuine, present and sufficiently serious threat" to the public to justify his deportation to Spain under the Citizenship Directive and that such deportation would not infringe his rights under Article 8 of the ECHR. The letter concluded by informing the claimant that he had a right of appeal against this decision.
14. The custodial part of the claimant's sentence will end on 15 January 2013.

Are the proceedings academic?

15. Mr Andrew Deakin for the two Secretaries of State contends that as a result of the decision to deport the claimant made on 1 November 2012 this claim for judicial review has become academic. It is common ground that because of this decision the claimant is not now eligible for HDC and, whatever my decision on this claim, cannot be released until the expiry of the custodial part of his sentence unless there is in the meanwhile a successful challenge to the deportation decision. Moreover, says Mr Deakin, it is apparent from the UKBA letter dated 12 June 2012 that even if the claimant would otherwise have been assessed as suitable for HDC, the SSHD had made clear that if necessary the claimant would be detained under immigration powers pending a decision on his deportation, so that there was never any question of his release on HDC, with the consequence that the claimant's claim for damages must fail.
16. In my judgment, however, this claim ought to be decided on its merits. Permission to challenge the lawfulness of the policy in PSI 52/2011 has been given and, if the claimant has been refused HDC release on the basis of an unlawful policy, the court ought to say so. Accordingly I reject the submission that this claim should be dismissed on the ground that it is now academic.
17. In addition it would be unfortunate if an opportunity to test the lawfulness of the policy contained in PS 52/2011 could be lost as a result of the SSHD making an adverse decision on deportation shortly before the hearing of a claim for judicial review, although there is no suggestion that this factor motivated in any way the timing of the decision in the present case.

Was there unlawful delay by the SSHD in making a decision on deportation?

18. Before dealing with the substance of the challenge to the policy in PSI 52/2011, I should deal with the claimant's complaint that there was delay by the SSHD in making a decision whether to deport him. The relevant period of delay complained of is between February and August 2012. It is said, correctly, that UKBA was aware by February 2012 of the need to make a decision on the claimant's immigration status and that there has been no explanation of the failure to commence the decision making process before August 2012.
19. It is said further that by this time it was inevitably too late for a decision to be made and, in the event that it was favourable, for the claimant's suitability for HDC to be assessed by 3 September 2012, the date when he would become eligible. However, I do not accept this. The chronology shows that UKBA was capable of making a prompt decision on the question of deportation and did in fact do so. It is not entirely clear from Mr Ogunmisi's witness statement when he first realised that the claimant's representatives wanted UKBA to make a decision on the evidence available without waiting for the requested information about the claimant's fiancée, but the implication is that this was not until fairly late in October. A decision was then made promptly.
20. In the event it has not been proved that any delay between February and August had any causative effect on the absence of a deportation decision in time for the claimant to be considered for HDC. If the claimant's own representatives had not indicated, no doubt for good reason and in the claimant's overall best interests, that they intended to provide further information, it may well be that a decision on deportation could have been made before 3 September 2012. Moreover, if that had happened, there is no reason to suppose that it would have been any different from the decision actually made on 1 November 2012, namely that the claimant should be deported. In that event, subject to a successful challenge to such a decision, there would have been no question of HDC. Accordingly the challenge based on delay is dismissed.
21. I add that there may in any event be good reasons for not making a decision on deportation too early. Since the question is whether a prisoner should be deported when he has served the custodial part of his sentence, and since Parliament has determined that he should be unless he can rely on one of the exceptions to the automatic deportation provisions, the relevant question will arise at the time when he will be released. It is at that time that such matters as propensity to re-offend and the strength of family ties with the United Kingdom will need to be assessed. An assessment of these matters at the beginning of a sentence will not necessarily yield the same result as an assessment closer to its end.

The policy

22. I turn, therefore, to the substance of the claim that the policy contained in PSI 52/2011, issued in November 2011, is unlawfully discriminatory. The relevant paragraphs of this policy provide as follows (the emphasis and italics are contained in the policy):

"2.43 The purpose of HDC is set out in paragraph 1.4 of PSO 6700 (Home Detention Curfew) – "to manage more effectively the transition of offenders back into the community". This purpose will not be achieved where the prisoner is being removed from the UK rather than re-settling here. This is reflected in the statutory bar on HDC for prisoners liable to removal from the UK and also in the following guidance which ensures that proper regard is given to immigration status in making decisions about HDC.

Prisoners who are liable to removal from the UK are defined by section 259 of the Criminal Justice Act 2003 or section 46 of the Criminal Justice Act 1991 [and] are statutorily excluded from HDC. No prisoner can be released on HDC who:

a. is liable to deportation under section 3(5) of the Immigration Act 1971 and has been notified of a decision to make a deportation order;

b. has a court recommendation for deportation;

c. has been notified of a decision to refuse leave to enter the UK;

d. is an illegal entrant within the meaning of section 33 of the Immigration Act 1971; or

e. is liable to removal under section 10 of the Immigration and Asylum Act 1999.

2.45 Unless UKBA has already confirmed the prisoner's immigration status, the prison should contact UKBA at the start of the HDC consideration process i.e. around 10 weeks prior to the HDC eligibility date) in order to establish the current position. The form at Annex D should be faxed/emailed directly to the CCD Caseworker if known or the Criminal Casework Directorate at … or the relevant Local Immigration Team contact point (details at Annex E) with a request for it to be completed and returned within 4 weeks.

2.46 In relation to those categories of prisoners outlined at 2.44a above – i.e. automatic (2007 UK Borders Act) and non-automatic (1971 Immigration Act) deportation cases – there needs to have been a decision to deport before the prisoner is made statutorily ineligible for HDC. Currently, the decision to deport is conveyed via an ICD 3805 and a deportation order (ICD 3813 or 3814) in automatic deportation cases and via an ICD1070 in non-automatic deportation cases.

2.47 Where the prisoner has been notified of liability to deportation (currently notified via an ICD 350 or ICD 350 AD), but there has not been a decision to deport, the prisoner is not precluded from consideration for release on HDC. However, the fact that there is a current intention to deport on release, plus any additional information from UKBA, must be taken into account in considering suitability for HDC. Given the resettlement purpose of HDC, such prisoners should be presumed unsuitable to be considered for release on HDC unless there are exceptional circumstances justifying release. For example, where UKBA has confirmed that deportation is unlikely to be effected for the foreseeable future, and they do not intend to detain the prisoner on release from prison. Where there are exceptional circumstances, the prisoner may be risk assessed for release on HDC but it must be assumed at this stage that the prisoner will be deported at some point after release from prison. This factor should be taken into account, along with any other relevant information, when conducting the risk assessment, including the likelihood of compliance with HDC conditions.

2.48 An IS 91 (authority to detain under immigration powers) does not, of itself, make a prisoner statutorily ineligible for release on HDC, but it does mean that the prisoner cannot be released into the community when it comes into force at the point the prisoner is released from the sentence. Therefore, the issuing of an IS 91 serves to defeat the objective of release on HDC. A prisoner who has been issued with an IS 91 should be advised that they are unsuitable for HDC because they cannot meet the criteria to be released into the community for resettlement purposes at present but that suitability for HDC will be re-assessed if the IS 91 is withdrawn. UKBA will notify the prison immediately it has been decided to abandon deportation proceedings and/or withdraw the IS 91, or if a decision to deport has been made."

23. It is common ground that by reason of the UKBA letter dated 16 February 2012 the claimant had been "notified of liability to deportation" within the meaning of the first sentence of paragraph 2.47, but until 1 November 2012 there had been no decision to deport him. Accordingly he was a person to whom the policy in paragraph 2.47 applied, that is to say he was not precluded from release on HDC, but was presumed unsuitable for release on HDC unless he was able to show that there were exceptional circumstances justifying such release.
24. Before considering the lawfulness of that policy it is necessary to put it into its legislative and policy context.

The home detention curfew scheme and its application to foreign prisoners

25. Section 246 of the Criminal Justice Act 2003 provides the Secretary of State with a discretion to release a prisoner on HDC:

"(1) Subject to subsections (2) to (4), the Secretary of State may –

(a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period …"

26. It is common ground that the purpose of HDC, as stated in paragraph 2.43 of PSI 52/2011 set out above, is to manage the transition of offenders back into the community.
27. By virtue of section 246(4)(f), this power to release on licence does not apply to a prisoner who is "liable to removal from the United Kingdom". The logic of this exclusion is that a prisoner liable to removal will not be resettled in the community and therefore there is no transition back into the community to be managed. The phrase "liable to removal from the United Kingdom" is defined by section 259. It applies to a person if, among other things:

"he is liable to deportation under section 3(5) of the Immigration Act 1971 (c.77) and has been notified of a decision to make a deportation order against him."

28. Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. The claimant was not "liable to removal from the United Kingdom" within this definition, at any rate until 1 November 2012. This is because, whether or not he was "liable to deportation" under the section, he had not been notified of any decision to make a deportation order against him.
29. Section 32 of the UK Borders Act 2007 obliges the SSHD to deport certain foreign national criminals including those sentenced to imprisonment for one year or more. It provides that:

"(1) In this section "foreign criminal" means a person –

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2)     Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. ...

(4)      For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."

30. It is common ground that section 32 applies in the claimant's case. He is a Spanish national who has been convicted of an offence for which he has been sentenced to imprisonment for two years and is therefore within the definition of "foreign criminal". Subject only to section 33, it has therefore been determined by Parliament that his deportation would be conducive to the public good and that the SSHD must make a deportation order in respect of him.
31. Section 33 sets out exceptions to this requirement for automatic deportation of "foreign criminals". It provides that:

"(1) Section 32(4) and (5) –

(a) do not apply where an exception in this section applies (subject to subsection (7) below), ...

(2)   Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach –

(a) a person's Convention rights, ...

(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties.

(7) The application of an exception –

(a) does not prevent the making of a deportation order;

(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4."

"Convention rights" has the same meaning as it has in the Human Rights Act 1998, while "the EU treaties" means the treaties of the European Union.

32. Accordingly the effect of section 33 is that the SSHD has no obligation to deport a person falling within the definition of "foreign criminal" under section 32(5) in the event that such deportation would infringe the person's rights under the European Convention on Human Rights (including Article 8) or the provisions of European Union law. However, even when an exception applies, the concluding words of section 33(7)(a) mean that, at least in some cases, section 32(4) still applies and Parliament has therefore determined that deportation would be conducive to the public good. In this respect there is a difference between a prisoner who resists deportation on Convention grounds (Exception 1) and one who resists deportation under EU law as a citizen of the EU (Exception 3). In the former case section 32(4) applies, which means that Parliament has determined that deportation would be conducive to the public good, while in the latter case there is no such conclusive determination. In either case deportation cannot be effected if it would infringe the rights in question, although in the case of a non-EU citizen relying only on the Convention the conclusive determination by Parliament that deportation would be conducive to the public good may be a legitimate consideration in determining whether it would be proportionate and thus whether the prisoner's rights would be infringed. However, this question need not be further explored in this case as the claimant is certainly an EU citizen and is therefore entitled to contend that he falls within Exception 3 in addition to his reliance on the Convention.
33. A decision therefore needed to be made (and has now been made by the 1 November 2012 decision) whether deportation would infringe the claimant's Convention or EU law rights. As Mr Hugh Southey QC for the claimant points out, the exception provisions in section 33 are objective in that they depend upon whether removal would actually breach the Convention or EU law. They do not depend upon the SSHD's views of these issues. A decision of the SSHD that a person is not exempt from deportation is not determinative as there may be a successful appeal against that decision. However, it is for the SSHD to make that decision in the first instance, and for a foreign prisoner who wishes to challenge that decision to exercise his rights of appeal.
34. It is obvious that it will not be possible for some prisoners falling within the definition to be deported because that would infringe their Convention or EU rights. That is what the legislation expressly contemplates. The question raised by the present case concerns the position, so far as HDC is concerned, before a decision on deportation has been made. That is what paragraph 2.47 of PSI 52/2011 deals with.
35. A closely related issue is expressly dealt with in section 36 of the UK Borders Act 2007. This provides:

"36 Detention

(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State–

(a) while the Secretary of State considers whether section 32(5) applies, and

(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order."

36. This section only applies after the period of imprisonment has come to an end (see R (Francis) v. SSJ & SSHD [2011] EWHC 1271 (Admin) at [12]). The SSHD therefore had no power to detain the claimant under this section and needed no such power, as he was already serving a lawful sentence of imprisonment. However, the SSHD's practice is to give notice by the issue of form IS 91, before a prisoner is released, that the power to detain under this section will be exercised once the custodial part of the sentence comes to an end.
37. Section 36 demonstrates that there will be some prisoners whose sentences come to an end before any decision on deportation has been made, and plainly contemplates that such prisoners will serve the entirety of the custodial part of their sentences. Inevitably, some of those prisoners will ultimately be found to be entitled not be deported. Nevertheless they may be detained not only for the entirety of the custodial part of their sentences, but after the expiry of the sentence, albeit that when the sentence is completed and detention is only pursuant to section 36(1), the opportunity exists to apply for bail.
38. It is important to emphasise that although Mr Southey indicates that the claimant does not necessarily accept that the statutory provisions set out above comply with the requirements of the Convention or with EU law, and says that it may be that they discriminate unlawfully on the grounds of nationality, there is no challenge in the present proceedings to those statutory provisions. What is challenged is the policy contained in paragraph 2.47 of PSI 52/2011. Mr Southey says that a challenge to the statutory provisions themselves would have been premature while no decision on deportation had yet been made. Be that as it may, there is no such challenge before me and I proceed on the basis that these provisions are Convention- and EU-compliant.

The claimant's Convention and EU rights

39. As already indicated, it is the claimant's case that he has a strong case for resisting deportation under both the Convention and EU law. So far as the Convention is concerned, he relies on Article 8 and contends that his relationship with his fiancée and her children (who would be unlikely to be able to accompany him to Spain, not least because that would affect the children's relationship with their father), the nature of his offending and the low or extremely low risk of re-offending mean that deportation is likely to be disproportionate.
40. As for EU law, the claimant relies on Articles 24 and 27 of the Citizenship Directorate. Article 24 provides that:

"Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. …"

41. Article 27 provides:

"1. Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."

42. Accordingly, while deportation of an EU citizen is permitted on grounds of public policy or public security, such deportation must be proportionate and must be based on the personal conduct of the individual concerned, which must "represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". The claimant says that this means that there must be a propensity to re-offend and that this test is not satisfied in any event, in addition to the matters on which he relies for his Article 8 claim.
43. I accept Mr Deakin's submission that it is unnecessary for me to express any view about the strength of the claimant's case and that I should not do so. It was for the SSHD to make her decision, which she has now done. That decision can be, and no doubt will be, challenged by way of an appeal. It may well be, to judge from the decision letter, that there will be a factual dispute, for example as to the strength and duration of the claimant's relationship with his fiancée and her children and, if there is, that dispute is better resolved in the appeal process. Even if there is no such factual dispute, the statutory scheme is that the decision is for the SSHD, and is subject to a right of appeal.
44. In any event, the strength of the claimant's individual claim is not relevant, as it seems to me, to whether the policy contained in paragraph 2.47 of PSI 52/2011 is lawful. That policy applies to prisoners in respect of whom no decision has yet been made, which must necessarily include some prisoners with strong prospects of resisting deportation. The policy is either lawful or unlawful regardless of whether this particular claimant is one such.
45. I note also that in Francis [2011] EWHC 1271 (Admin) and [2012] EWCA Civ 1200, a challenge to the SSJ's previous policy concerning HDC for foreign prisoners contained in paragraph 11 of PSI 4630, which I consider further at [56] and following below, the claimant had a strong case under the Convention. Prior to her prison sentence she had already succeeded in establishing that deportation to Jamaica would result in a breach of Article 3 because her life would be at risk there from criminal elements. By the time of the hearings before the Divisional Court and Court of Appeal it was known that her challenge to the SSHD's decision that she did not fall within the Convention exception in section 33 of the UK Borders Act 2007 had succeeded on appeal. She was therefore a person who had been proved to be within the exceptions, and who could not therefore be deported, albeit that this had not been finally determined at the time when she would have been eligible for HDC. In that sense she was in a stronger position than the present claimant, whose position remains to be finally determined however strong his prospects on appeal may appear. However, none of the judgments in either court suggested that the strength of the claimant's case was potentially relevant to the lawfulness of the policy on HDC including the argument of unlawful discrimination.
46. I add that Mr Southey relied on the reference by Blake J in Brooke v. SSJ [2009] EWHC 1396 (Admin) at [20] to "a whole class of people who could not be removed" which included "EEA nationals with residence rights under European Community law that may survive their offending, as well as any foreign nationals with very strong private [or] family life or other reason to prevent their removal". That was a case where a British prisoner was complaining of unlawful discrimination by reason of foreign nationals' eligibility for early removal under section 260(1) of the Criminal Justice Act 2003 and it was in that context that the Divisional Court held that there was no discrimination on the basis of nationality. However, in referring at [20] to the fact that some foreign national prisoners cannot be removed, Blake J was not addressing at all the position where a decision on deportation had not yet been made.
47. Therefore it cannot be said at this stage that the claimant cannot be removed. Until the SSHD made her decision on 1 November 2011 that remained to be determined and, notwithstanding that decision which was adverse to the claimant, it still does.

The claimant's challenges to the policy

48. The claimant challenges the policy on four grounds. Although the precise terminology and applicable tests are different depending on what legislation is under consideration, in all cases the essence of the complaint is that the policy does or may involve discrimination on grounds of nationality, which cannot be objectively justified. This is said to be unlawful under (a) Article 14 of the ECHR read with Article 5, (b) Article 24 of the Citizenship Directive, and (c) section 13 of the Equality Act 2010. These are the first three grounds of challenge. In addition, it is said that the policy gives rise to an unacceptable risk of illegality and is therefore unlawful in accordance with the principle established in R (Medical Justice) v. SSHD [2010] EWHC 1925 (Admin). This is the fourth ground.
49. A preliminary question arises in relation to Article 14, namely whether differential treatment in the grant of HDC on the ground of nationality comes within the ambit of a Convention right, given that Article 14 does not provide a free standing right not to be discriminated against. Subject to that, however, it is essential to all four ways in which the claimant puts its case that the claimant must establish that there is discrimination on the ground of nationality. It may be, for example, that the claimant has a stronger case for resisting deportation under the Citizenship Directive than under Article 8 (or perhaps vice versa) but so far as his challenge to the legality of the policy on HDC is concerned, his grounds of challenge depend on establishing discrimination on the ground of nationality and in that respect they stand or fall together. There may then be, at any rate under the Convention, and possibly under EU law, a further question whether such discrimination can be justified.

The ambit of Article 14 ECHR

50. I therefore propose to consider first whether differential treatment in the grant of HDC on the ground of nationality comes within the ambit of a Convention right. In my judgment it is clear that it does. In R (Clift) v SSHD [2006] UKHL 54, [2007] 1 AC 484 the issue was whether the early release provisions applicable to long term prisoners under the Criminal Justice Act 1991 fell within the ambit of Article 5 of the Convention. That issue arose because the provisions in question operated differently according to whether a prisoner was liable to removal from the United Kingdom. The House of Lords held that (1) the provisions did fall within the ambit of Article 5 so as to give rise to a potential claim under Article 14; (2) (as was conceded) there was a difference of treatment on the ground of national origin; and (3) this difference of treatment was not objectively justified and was therefore unlawful. In relation to the first issue Lord Bingham said this:

"16. … During the currency of a lawful sentence, article 5(4) has no part to play. But the Secretary of State's argument founders, in my opinion, on a failure to recognise both the importance, in our system, of the statutory rules providing for early release and the close relationship between those rules and the core value which article 5 exists to protect.

17. The Convention does not require member states to establish a scheme for early release of those sentenced to imprisonment. Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or proportion of the sentence has been served, if that is what domestic law provides. But this is not what the law of England and Wales provided, in respect of long-term determinate prisoners, at the times relevant to these appeals. That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged.

18. A number of grounds (economy and the need to relieve over-crowding in prisons) have doubtless been relied on when introducing pre-release schemes from determinate sentences such as those under consideration here. But one such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence; that in some cases those interests will be best served by releasing the prisoner at the earlier, discretionary, stage; and that in those cases prisoners should regain their freedom (even if subject to restrictions) because there is judged to be no continuing interest in depriving them of it. I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5, and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under article 14.

19. This is a conclusion I would unhesitatingly reach even if there were no Strasbourg authority on the point. But the Strasbourg institutions have consistently recognised the possibility of a claim under article 14, in relation to article 5, where a parole scheme is operated in an objectionably discriminatory manner. ..."

51. So far as the question of the ambit of Article 5 is concerned, this reasoning is equally applicable to HDC.
52. Mr Deakin resists this conclusion, relying on the comment by Elias LJ in R (Whiston) v. SSJ [2012] EWCA Civ 1374 at [20] that:

"There is no doubt that a decision not to release on licence, whether home curfew detention or otherwise, does not engage Article 5."

53. However, as explained by Elias LJ at [9], the issue in that case was whether a decision to recall to prison a prisoner who had been released on HDC without a right of review by the Parole Board or any other judicial body was contrary to Article 5(4). It had nothing to do with discrimination or Article 14. As Lord Bingham explained in Clift at [12] and [13], the questions whether a matter falls within the ambit of a Convention right for the purpose of a discrimination claim under Article 14 and whether that Convention right is itself infringed are distinct questions. In the case of a discrimination claim under Article 14, what matters is not whether a separate Convention right has been violated but whether "a personal interest close to the core of such right is infringed." Since Whiston was not concerned at all with Article 14, I have no doubt that Elias LJ's comment says nothing about whether the SSJ's policy on HDC release is capable of falling within the ambit of Article 5 for the purpose of a potential claim under Article 14.
54. Indeed Mr Deakin acknowledges that, if he is right in his submission that this policy falls outside the ambit of Article 5, there would be no breach of the Convention even if the SSJ were to adopt an explicitly discriminatory policy (such as that HDC was only available to white men) and even if this policy were embodied in primary legislation (however unlikely these things would be). He submits that whatever other remedies there may be in such circumstances, the Strasbourg court would have to accept that there was no breach of the Convention. I do not accept this (cf. the broadly similar examples given by Lord Brown in Clift at [66]).
55. It follows that there is potentially a claim under Article 14, as well as under Article 24 of the Citizenship Directive and section 13 of the Equality Act 2010.

Does the policy in PSI 52/2011 discriminate unlawfully on the ground of nationality?

56. In order to decide whether the policy discriminates on the ground of nationality it is necessary to consider further what was decided in Francis, both in the Divisional Court [2011] EWHC 1271 (Admin) and in the Court of Appeal [2012] EWCA Civ 1200. Mr Deakin contends that the decision in this case is determinative of the present claim.
57. Francis was a challenge by a prisoner to the refusal to release her on HDC at a time when, as in the present case, no decision on deportation had yet been taken by the SSHD. The then current policy, contained in paragraph 11.1 of PSI 4630, stated that prisoners in such cases were statutorily ineligible for HDC, but this was a mistake. Because of the definition of "liable to removal" in section 259(a) of the Criminal Justice Act 2003 (set out at [27] above), statutory ineligibility arises only when a decision to deport has been notified. Shortly before Miss Francis reached the point at which she would have become eligible for HDC, the SSHD issued an IS 91 stating that she was considering whether section 32(5) of the UK Borders Act 2007 applied and in view of this the prison refused to grant HDC. By the time that this decision was made, the mistake in the policy had been recognised, and the reason for the refusal was the fact that an IS 91 had been issued.
58. Miss Francis contended that the issue of an IS 91 was not a valid reason for refusing HDC, but this argument was rejected in the light of the purpose of HDC. In the Divisional Court Toulson LJ said at [38]:

"The HDC scheme permits the release of a prisoner during a limited period (up to 135 days) before the end of the 'requisite custodial period' for the specific purpose of managing more effectively the transition of the offender from custody back into the community. The issue of the IS 91 meant that the claimant could not then be released into the community. In that respect its practical effect was the same as the making of a deportation order. Nor can the decision be said to be contrary to the policy contained in PSO 4630, i.e. that HDC should normally be given to any eligible prisoner, because that involves a blinkered reading of the document. It clearly did not envisage granting HDC to a prisoner who could not be released into the community by reason of the existence of an IS 91, although it wrongly stated this to be a statutory bar."

59. After the conclusion of oral argument before the Divisional Court those acting for Miss Francis sought to raise a new point, that the refusal of HDC constituted discrimination on the ground of nationality contrary to Article 14 of the Convention in combination with Article 5, and cited (among other cases) Clift at [18] (set out at [50] above). This is the same point as is made by the claimant in this case. However, the Divisional Court refused permission to amend to raise this new point. Toulson LJ said at [48]:

"I would refuse the claimant's application to amend her grounds of review to raise this issue. The ordinary period of limitation for such a claim is one year and the application is therefore long out of time, but the time interval is not my principal reason for considering that the application should be refused. The claim, which was not advanced or foreshadowed at the time of the hearing, does not include any argument that section 246(4)(f) of the CJA 2003 itself contravenes articles 5 and 14 of the Convention. That is the critical provision which creates an exception from the HDC scheme in the case of a prisoner who is liable to removal from the United Kingdom. (The claimant's detention after 11 November 2009, when she became statutorily ineligible for HDC because of the Home Secretary's decision that she was liable to deportation, has always been accepted to have been lawful.) If a challenge had been made to the compatibility of section 246(4)(f) with the Convention, the Home Secretary would no doubt have argued that it was objectively justifiable and proportionate to exclude from the HDC scheme persons who are liable to deportation, having regard to the limited nature and purpose of the HDC scheme – i.e. to permit the release of a prisoner up to 135 days before the date on which they would otherwise have been released as a better way of managing their return from custody into the community. If the statutory exclusion of prisoners liable to deportation from the HDC scheme is compatible with the Convention (and the contrary has not been argued), I do not see how it can be argued that it nevertheless contravenes the Convention for the State to refuse HDC to a person whose detention has been authorised by the Home Secretary while considering whether the mandatory deportation provisions of section 32(5) of the UKBA 2007 apply."

60. While it is true that delay was one reason for the refusal of permission to amend, it was expressly stated not to be the main reason. The main reason was that in the absence of a challenge to the statutory provisions themselves, the argument would inevitably fail on its merits.
61. In the Court of Appeal Pill LJ held at [29] that there was a breach of a duty to consider HDC notwithstanding the existence of an IS 91, but went on to hold that the existence of an IS 91 was a relevant consideration and, on the facts, that HDC was most unlikely to have been granted even if this duty had been complied with:

"30. … There must obviously be liaison between the Ministry of Justice and the Home Office, which in the present circumstances means liaison between the Prison Service and UKBA. Where, as in this case, notice of consideration for deportation had been given, it is obviously sensible for the Prison Service to seek information from UKBA as to the foreign prisoner's status and their proposals. The purpose of HDC is to manage more effectively the transition of offenders from custody back into the community. In the case of a prisoner who is to be deported, resettlement into the community does not arise.

31. In my judgment, it is highly unlikely that HDC would have been granted in this case had the Prison Service considered, as they should have done, whether to grant it. Had UKBA been aware of the possibility of a grant, their decision making process would have been accelerated. The probability is that they would have taken the decision, which excluded the appellant from eligibility for HDC, at an earlier date, though careful consideration of the appellant's circumstances was first required. The appellant would then have become a person liable to removal from the United Kingdom under section 246(4)(f) and excluded from consideration for HDC.

32. In any event, a grant of HDC, once an IS 91 had been issued, was very unlikely even though the grant was not excluded by statute. Given the purpose of HDC, the Secretary of State is most unlikely to have exercised his discretion, and under section 246(1) the discretion is a general one, to grant HDC. He would have been aware of the potential complexity of the Home Secretary's duties under section 33 of the 2007 Act, and the need for time to perform them. It would not have been unlawful for him to have regard to immigration requirements notwithstanding the absence of reference to them in the then current PSO 6700, at 5.13.3 or elsewhere."

62. Pill LJ dealt with the application for permission to amend to rely on Article 14 at [40] to [42]. He said:

"40. The Divisional Court's reasoning as to delay is persuasive but, in any event, there is a clear justification in substance for the distinction between foreign and national prisoners. A scheme designed to promote resettlement into the UK community cannot be expected to apply on the same terms to those subject to notice of intention to make a deportation order. The case is very different from the denial of medical therapy in Rangelov.

41. The appellant was treated differently not because she was Jamaican but because of her immigration status. Neither race nor nationality are causally relevant. A scheme designed for reintegration into the community cannot be expected to operate in the same way for those liable to deportation.

42. The issue of different treatment as between national and foreign prisoners was considered in Brooke v Secretary of State for Justice [2009] EWHC 1396 (Admin) (Divisional Court) and I agree with the approach. Sir Anthony May P, stated, at paragraph 30:

"The essential point, in my view, is that the position of, and statutory release arrangements for, prisoners who are liable to be removed from the United Kingdom are not analogous with those for prisoners who are not so liable to be removed. The different regimes are in place not because of differences in nationality, but because the first class of prisoner is liable to be removed and the second is not. The two situations are not comparable. Release on home detention is to be seen as a relaxation of a custodial sanction. Release for the purposes of removal is to enable a different sanction from imprisonment in this country to be brought into effect. Such prisoners are not released into the community.""

63. In my judgment, and so far as relevant to the present case, Francis decides as follows:

(a) First, a prisoner's immigration status is relevant to whether he or she should be granted HDC. A prisoner who is going to be deported falls outside the scope of HDC, the purpose of which is to manage resettlement in the community.

(b) Second, and in the absence of any challenge to the statutory provisions themselves, once a decision has been made by the SSHD that a prisoner will be deported pursuant to the automatic deportation provisions of section 32 of the UK Borders Act 2007, the prisoner becomes statutorily ineligible for HDC. Despite the possibility that there may be a successful challenge to the SSHD's decision, there is then no obligation on the SSJ to consider the grant of HDC unless and until the SSHD's decision is in fact successfully challenged.

(c) Third, in a case where no decision has yet been made by the SSHD whether a prisoner who is subject to the automatic deportation provisions is entitled to rely on one of the exceptions in section 33, the Prison Service should seek information from UKBA as to the prisoner's immigration status and UKBA's proposals.

(d) Fourth, the SSJ, acting through the Prison Service, has a duty to consider HDC when no decision on deportation has yet been made. However, in a case where an IS 91 has been issued, it will in general be a lawful exercise of the SSJ's discretion to refuse release on HDC, having regard to the purpose for which such release exists.

(e) Fifth, exercise of the SSJ's discretion in accordance with these principles does not constitute unlawful discrimination contrary to Article 14 of the Convention in combination with Article 5.

64. In respect of the period until notification of the decision to deport dated 1 November 2011, the present case can be distinguished from Francis on the facts in one respect, which is that whereas in Francis an IS 91 had in fact been issued, in the present case the SSHD had merely indicated that if necessary an IS 91 would be issued. I do not, however, regard this distinction as material. In both cases the relevant consideration for the exercise of the SSJ's discretion to release on HDC is whether the prisoner is likely to be a person whose resettlement into the community needs to be managed. If that is not the case when (as in Francis) an IS 91 has actually been issued, it is equally not the case when UKBA has made clear that if necessary an IS 91 will be issued.
65. Absent the arguments on unlawful discrimination, and in the absence of any challenge in this case to the statutory provisions, Francis therefore prevents any successful challenge to the refusal of HDC release in this case. In relation to discrimination, Mr Southey is compelled to submit that, as a decision on permission to amend which may not have been the subject of full argument, the decision in Francis is not binding. I do not accept this. The discrimination argument (that refusal of HDC to foreign prisoners in respect of whom no decision had yet been made constituted unlawful discrimination contrary to Article 14) was an argument of law not dependent on further factual findings and there is no reason to suppose that it was not fully developed in the course of what was, I note, a two day hearing before the Court of Appeal. The argument was dismissed by the Court of Appeal on its merits and not for merely procedural reasons.
66. Mr Southey submits also that Francis is distinguishable because it was not concerned with EU law, Miss Francis not being an EU national. That is true, but the issues were whether there was discrimination in the availability of HDC release on the ground of nationality and, if so, whether that could be justified. The answer to the first question does not depend at all on whether the discrimination complained of arose under EU law or the Convention.
67. In my judgment the reasoning of Pill LJ at [40] to [42] set out above constitutes a determination both (1) that difference in treatment regarding release on HDC based on liability to removal from the United Kingdom is not discrimination on the ground of nationality (see in particular [41] and the citation from Brooke at [42]) and (2) that in any event such difference in treatment, even if on the ground of nationality, is clearly justified and so is not a breach of Article 14 (see [40]). I consider that I am bound to follow this reasoning. However, even if that is not so, this is a considered decision with which both Lloyd LJ and Lewison LJ agreed, which is at least strongly persuasive and which I ought to follow.
68. This is sufficient to defeat the claimant's challenge on Article 14 and, as indicated at [49] above, once it is found that there is no discrimination based on nationality for the purpose of that Article, the remaining arguments based on the Citizenship Directive and the Equality Act 2010 must fall away. Equally, the claimant's reliance on an unacceptable risk of illegality in accordance with the Medical Justice [2010] EWHC 1925 (Admin) principle cannot arise. If there is no discrimination on the ground of nationality, there is no risk of illegality and that is so regardless of a prisoner's individual merits on the issue of removability.
69. Mr Southey submits that the position is different under the Citizenship Directive because Article 30 requires that a decision to restrict freedom of movement under Article 27 must be notified in writing with full reasons. He submits that unless and until that is done, freedom of movement cannot be restricted and therefore the claimant, as an EU citizen, must be treated as someone who cannot be removed. I reject this submission. It is clear that, unless and until a decision is made and notified (which has now been done by means of the 1 November 2012 decision, subject to any successful appeal) the claimant cannot actually be removed, but Article 30 does not require the SSHD or the SSJ to treat the claimant for the purpose of considering HDC release as a person who cannot be removed when that question is still being considered and a decision has not yet been made.
70. I would, however, add two observations. First, I would in any event have accepted Mr Deakin's submission that the relevant distinction so far as HDC is concerned is not between British and foreign prisoners but between those who are liable to deportation and those who are not. The latter category includes foreign nationals who are not subject to the automatic deportation provisions (because they are serving sentences less than one year) and whose deportation has not been determined to be conducive to the public good, and also foreign nationals who are subject to the automatic deportation provisions but in respect of whom the SSHD has decided that one of the section 33 exceptions applies.
71. Second, if there were discrimination on the ground of nationality and to the extent that this is material (a point which I need not decide), it would in my judgment be at least a relevant consideration in determining whether the difference in treatment of foreign prisoners subject to the automatic deportation provisions is justified that Parliament has determined that the deportation of such prisoners is (at least prima facie and in some cases conclusively) conducive to the public good. It would need to be borne in mind also that (in contrast with the early release provisions considered in Clift) release on HDC is not a matter of right but a matter of discretion; that it exists for a specific purpose which does not apply to those who may be removed; and that if she is to make a proper assessment of a prisoner's position, the SSHD will need time in which to do so (with unjustified delay being susceptible to judicial review: see Francis in the Court of Appeal at [58]).
72. As it is, however, in view of my conclusion as to the effect of Francis, these matters need not be further considered.

The policy revisited

73. I return finally to the policy contained in paragraphs 2.43 to 2.47 of PSI 52/2011 set out at [22] above. Those paragraphs begin by stating the purpose of release on HDC and set out the effect of the relevant statutory provisions. They provide, in paragraph 2.45, for the prison to contact UKBA in good time at the start of the HDC consideration process in any case where the prisoner's immigration status has not yet been confirmed, and recognise (in this respect correcting the error in the previous policy) that there needs to have been a decision to deport before a prisoner becomes statutorily ineligible for HDC.
74. The position where a prisoner has been notified of liability to deportation but there has not been a decision to deport is addressed in paragraph 2.47. This paragraph requires that any information from UKBA, including any current intention to deport (which ex hypothesi has not yet resulted in a formal decision) must be taken into account, but does not say that UKBA's intention is conclusive. It recognises, however, that where there is such an intention to deport, the result will generally be that having regard to the resettlement purpose of HDC, release on HDC will not be suitable, albeit that the possibility of exceptional cases is allowed for. One example, although not necessarily the only example, of such a case is given.
75. In my judgment it is obviously necessary to have a policy to deal with the position where no decision on deportation has yet been made and this policy gives effect to the statutory provisions which I have set out. In the light of Francis, it cannot be regarded as discriminatory on the grounds of nationality.

Conclusion

76. For the reasons set out above this claim for judicial review is dismissed.