R Antonio Serrano v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Males |
| Judgment Date | 15 November 2012 |
| Neutral Citation | [2012] EWHC 3216 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8182/2012 |
| Date | 15 November 2012 |
[2012] EWHC 3216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Males
Case No: CO/8182/2012
Mr. Hugh Southey QC (instructed by Chivers Solicitors) for the Claimant
Mr. Andrew Deakin (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 6 th November 2012
Introduction
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.
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
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.
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.
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.
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.
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.
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.
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.
This claim for judicial review was issued on 2 August 2012.
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.
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.
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...
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