R Diana Francis v Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Mr Justice Lloyd Jones |
| Judgment Date | 20 May 2011 |
| Neutral Citation | [2011] EWHC 1271 (Admin) |
| Docket Number | CO/12294/2009,Case No: C0/12294/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 May 2011 |
[2011] EWHC 1271 (Admin)
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
and
Mr Justice Lloyd Jones
Case No: C0/12294/2009
Laura Dubinsky (instructed by Immigration Advisory Service) for the Claimant
Steven Kovats QC (instructed by Treasury Solicitor) for the Defendants
Hearing date: 17 February 2011
The claimant is a citizen of Jamaica. At the time of the matters giving rise to the complaint she was serving a sentence of two years' imprisonment and was therefore potentially liable to deportation on the completion of her sentence. Her complaint is that her eligibility for early release under the Home Detention Curfew Scheme (HDC) was not properly considered. She applies for judicial review and seeks the following remedies –
1. an order quashing the decision not to release her on HDC;
2. a declaration that the Justice Secretary's published guidance on the release of foreign national prisoners on HDC is unlawful;
3. a declaration that the failure to release her on HDC breached her rights under article 8 of the European Convention; and
4. damages.
In further written submissions made after the hearing the claimant seeks permission to amend her grounds of review to include claims that she is entitled to damages for wrongful detention under domestic law and/or article 5 and that she suffered a breach of article 14 in combination with article 5.
Home Detention Curfew
A person who is sentenced to a fixed term of imprisonment (as distinct from an indeterminate sentence) is ordinarily entitled under the terms of the Criminal Justice Act 2003 ( CJA 2003) to release on licence after serving one half of the nominal sentence. The period up to that point is referred to in the Act as "the requisite custodial period".
Under section 246 the Justice Secretary has power, subject to certain conditions, to release a prisoner on HDC at an earlier date. The earliest permitted date is 135 days prior to the end of the requisite custodial period. The scheme is subject to exceptions, one of which is where "the prisoner is liable to removal from the United Kingdom": section 246(4)(f).
Section 259 provides that a person is liable to removal from the United Kingdom if, among other things,
"he 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 against him."
Under section 3(5)(a) of the Immigration Act 1971 ( IA 1971) a person who is not a British citizen is liable to deportation from the United Kingdom if "the Secretary of State deems his deportation to be conducive to the public good".
In 2007 Parliament decided that the rules for deportation of foreign criminals should be strengthened. The UK Borders Act 2007 (UKBA 2007) established a new mandatory regime for deportation of foreign criminals which supplements the discretionary regime created by the IA 1971. A foreign criminal is defined in the UKBA 2007 as including any non-British citizen who is convicted in the United Kingdom of an offence and is sentenced to a term of imprisonment of at least twelve months. Section 32 provides:
"(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, 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)."
Section 33 sets out a number of exceptions. Section 33(2) states:
"Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach
(a) a person's Convention rights, or,
(b) the United Kingdom's obligations under the Refugee Convention."
However, this exception is itself qualified by section 33(7). This states:
"The application of an exception –
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that the 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…"
The effect is that the UKBA 2007 ordains that the deportation of a foreign national who receives a sentence of twelve months' imprisonment or more is conducive to the public good (regardless of any Convention considerations), and it permits the Home Secretary to make a deportation order, albeit that enforcement of the order may not be compatible for the time being with the person's Convention rights.
A decision that section 32(5) applies is subject to a right of appeal to an Immigration Judge under section 82 of the Nationality, Immigration and Asylum Act 2002, as amended by section 35 of the UKBA 2007.
The Home Secretary has certain powers of detention for purposes of immigration control under schedule 3 to the IA 1971. In particular, the Home Secretary may authorise the detention of a person against whom a deportation order is in force or who has been given notice of a decision to make a deportation order against him (and is not already detained in pursuance of a sentence or order of the court): paragraphs 2(2) and (3) of schedule 3. These powers are supplemented by section 36 of the UKBA 2007. In particular, section 36(1) provides:
"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."
It is clear from the words "who has served a period of imprisonment" that the power of detention under section 36(1) only applies after the period of imprisonment has come to an end, no doubt because detention under immigration powers would be unnecessary while the person is still serving a prison sentence. In practice it is therefore common for the Home Secretary to issue a written detention authority, known as an IS 91, near to the time when the person will or might otherwise be released. The detention under immigration powers will take effect when the detention under the sentence of imprisonment comes to an end.
The Justice Secretary's general policies regarding, first, HDC and secondly, immigration and foreign nationals in prisons, are set out respectively in Prison Service Orders (PSOs) 6700 and 4630.
PSO 6700, paragraph 1.4, states that the purpose of HDC is "to manage more effectively the transition of offenders from custody back into the community", and that for most eligible prisoners HDC will be a normal part of their progression through their sentence. However, before being granted HDC, prisoners must pass a risk assessment and have suitable accommodation approved by the Probation Service. A person released on HDC will be electronically tagged and subject to various restrictions.
The purpose of PSO 4630 is to ensure proper cooperation and understanding between the prison service and the Border Agency (part of the Home Office) regarding foreign nationals in prisons. It includes a section headed Home Detention Curfew. This states:
"11.1 Prisoners who are liable to removal are statutorily excluded from HDC. In determining a prisoner's immigration status, where an IS 91 has been issued or there is a court recommendation for deportation the prisoner is statutorily excluded. However, if the prison does not hold an IS 91, the prisoner may still be liable to removal as the notification of a decision by [BA] is not always accompanied by an IS 91.
11.2 Until the point at which [BA] confirm the prisoner's status, they are eligible to be considered for release on HDC and the assessment process must be carried out as it would be for a domestic prisoner.…
11.3 If, following completion of the HDC risk assessment, the Governor or Controller is minded to grant release to the prisoner on HDC, a final decision must not be made until confirmation has been received of the prisoner's immigration status…" (Original emphasis.)
Unfortunately this section contains an error. The first sentence of paragraph 11.1 is correct. A prisoner who is liable to removal from the UK is excluded from HDC by section 246(4)(f) of the CJA 2003. However, the second sentence of paragraph 11.1 is wrong. An IS 91 (or detention authority) will typically be issued by the Home Secretary under section 36 of the UKBA 2007 while considering whether section 32(5) applies or while pending the making of a deportation order. That is the purpose of the detention power given by section 36(1). However, the prisoner does not become statutorily "liable to removal from the United Kingdom", and therefore ineligible to be considered for HDC, until the Home Secretary deems his deportation to be conducive to the public good and the person has been notified of a decision to make a deportation order against him: section 259(a) of the CJA 2003. The mistake has led to the present case.
Facts
The claimant is a citizen of Jamaica. On 6 March 1999 she requested leave to enter the UK as a visitor. This was refused but she was granted temporary admission. She absconded.
On three occasions between October 2001 and September 2005 the claimant was convicted of possession of class A drugs and received non-custodial sentences. On 5 September 2006 she was convicted of four counts of supplying class A drugs (heroin and cocaine) for which she was sentenced to thirty months' imprisonment. On 19 January 2007 she was sentenced to a consecutive term of six months' imprisonment for assault occasioning actual bodily harm.
On 20 August 2007 the Home Secretary decided to make a...
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