R Jerry Foley v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 05 March 2019 |
| Neutral Citation | [2019] EWHC 488 (Admin) |
| Docket Number | Case No: CO/3377/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2019 |
[2019] EWHC 488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/3377/2017
and
Philip Rule and Raza Halim (instructed by Duncan Lewis Solicitors) for the Claimant
David Blundell and Julia Smyth (instructed by GLD) for the Defendant
The Interested Party was not represented
Hearing dates: 19 & 20 February 2019
Approved Judgment
Introduction
The Claimant, Mr Jerry Foley, an Irish citizen, challenges the decision of the Defendant, the Secretary of State for the Home Department (“the Secretary of State”), dated 18 April 2017 refusing to deport him to the Republic of Ireland (“the decision”).
On 11 August 2010 the Claimant received an indeterminate sentence of imprisonment for public protection (“IPP”) for an offence of robbery in possession of an imitation firearm. The minimum term which he was to serve before consideration of release was four years. That period expired on 11 April 2014. He remains in custody because of the risk he poses.
The Claimant complains that the decision deprives him of removal from prison through the deportation scheme known as the “Tariff-Expired Removal Scheme” (“TERS”), operated by the Interested Party, the Secretary of State for Justice. That is a scheme that, he says, “other indeterminate-sentenced foreign national prisoners are entitled to and that enables removal from the UK at the point of tariff-expiry” (Detailed Statement of Facts and Grounds of Claim (“SFG”), para 1). The Claimant's liberty, he contends therefore, is also affected by the decision.
Permission to apply for judicial review was granted by Lambert J on 5 February 2018.
Factual Background
The Claimant was born on 14 April 1975 in Cork in the Republic of Ireland.
Passing sentence in the Crown Court at Cardiff on 11 August 2010 HH Judge Stephen Hopkins QC referred to the Claimant's previous convictions and to “what can only be described as an appalling record”. The judge continued:
“You have two convictions in the United Kingdom, the second being dwelling-house burglary for which you received 18 months' detention in a Young Offender Institute as a sentence, but it is your convictions in the Republic of Ireland that are most significant. Since 1995 you have committed no less than ten offences of robbery or attempted robbery. Those, like any other of the offences which appear upon your long record result, it seems, from your dual addictions to alcohol and heroin.” (Transcript 3B-D).
On 4 April 2012 the Claimant was notified that the Secretary of State was considering whether he ought to be deported. On the same day the Claimant completed the questionnaire attached to the notification letter.
On 16 July 2012 the Claimant was notified that the Secretary of State had decided not to take further action on this occasion.
On 7 January 2016 the Claimant's solicitors, Duncan Lewis, wrote to the Secretary of State requesting reconsideration of the decision not to deport the Claimant. They attached a letter dated 8 May 2014 from the Claimant's previous representatives which stated that the Claimant met the criteria for deportation and should be subject to TERS.
On 19 January 2016 the Secretary of State notified the Claimant that the decision not to deport was maintained. The letter states:
“Further consideration has been given to the decision not to deport Mr Foley, which was communicated to him in our letter dated 16 July 2012. Careful note has been taken of Mr Foley's offending and of his conduct while in custody. Nevertheless, the decision not to pursue deportation action against him on this occasion is maintained.”
On 12 April 2017 the Claimant made further representations, seeking to persuade the Secretary of State to change his mind.
On 18 April 2017 the Secretary of State responded to Duncan Lewis, noting that the decision not to deport the Claimant had been reviewed and was maintained. The letter states, so far as is material:
“1. I am writing with reference to your communication of 12 April 2017 in which you seek reconsideration of the decision not to deport Mr Foley.
Consideration
2. You have referred to a ‘blanket ban’ against Irish nationals being eligible for the Tariff Expired Removal Scheme (TERS) because they are not liable for deportation.
3. It is acknowledged that the Home Secretary has decided the public interest is not generally served by enforcing the deportation of Irish nationals except in the most exceptional circumstances.
4. It is not accepted, as you have suggested, that this is a ‘blanket ban’. Irish nationality does not provide automatic exemption from deportation. As a guide, deportation is still considered if an offence involves national security matters, or crimes that pose a serious risk to the safety of the public or a section of the public. For example, a person convicted and serving a custodial sentence of 10 years or more for:
* a terrorism offence;
* murder;
* a serious sexual or violent offence.
5. It is not accepted, as you have suggested, that this policy is discriminatory. On the contrary, Irish nationals enjoy a more favourable position than nationals of other states with regard to immigration control (e.g. the Common Travel Area) and deportation.
…
7. You have said that Mr Foley received a decision from the Home Office dated 12 July 2012 informing him that he was not liable to deportation. The decision letter incorrectly stated that he was serving a four-year sentence and not an IPP with a minimum tariff of four years. It is accepted that as a result of this conviction Mr Foley became liable to deportation and that the contents of our letter of 16 July 2012 may have been misleading.
8. You have said that in our letter dated 19 January 2016 it was stated that ‘Mr Foley was not liable for deportation and wouldn't be eligible for the TERS scheme’. You have also said that one of the reasons given in that letter for Mr Foley not being considered for deportation was due to poor behaviour in prison. However, this is not the case. There is no reference in the letter to Mr Foley not being liable to deportation and no mention of TERS. Moreover, the letter does not state that Mr Foley's behaviour in custody was a factor in deciding not to deport him. It actually says:
‘I am writing in response to your letter of 7 January 2016.
Careful note has been taken of Mr Foley's offending and of his conduct while in custody. Nevertheless, the decision not to pursue deportation action against him on this occasion is maintained.’
9. When assessing whether deportation was appropriate, and mindful of the very high threshold required under the terms of the agreement on deporting Irish nationals, careful consideration was given to Mr Foley's risk to the public. This included taking account of all relevant information pertaining to that risk such as his prior offending, his behaviour in custody and the views of the National Probation service. With regard to the latter, it was noted that although his offender manager considered that Mr Foley potentially presented a high risk of serious harm to the public, his likelihood of reconviction was assessed as medium.
10. It was concluded that despite the seriousness of his offending, and despite the fact that Mr Foley displayed behavioural problems in custody, the exceptional circumstances required for his deportation to be deemed to be in the public interest within the terms of the agreement on deporting Irish nationals were not present.
…
12. The decision not to deport Mr Foley has been reviewed. However, after careful consideration of all the available evidence it is not considered that exceptional circumstances exist in Mr Foley's case. It is considered that any continuing risk to public safety posed by your client is better managed in the UK under the formal offender management supervision which will take place on licence, in the community, during any non-custodial element of his sentence of imprisonment, and under any post-sentence or post-licence supervision in the community. …”
Legal Framework
S.3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) provides that 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. By s.5(1), where a person is liable to deportation, the Secretary of State may make a deportation order against him, that is, an order requiring him to leave and prohibiting him from entering the United Kingdom.
Section 32(5) of the UK Borders Act 2007 (“the 2007 Act”) requires the Secretary of State to make an order for automatic deportation in respect of a foreign criminal in certain circumstances.
The right of EU citizens to move and reside within other Member States is provided for by Article 21 of the Treaty on the Functioning of the European Union (“TFEU”). The right of free movement is subject to the limitations and conditions set out in Directive 2004/38 (“the Directive”). The Directive is implemented in the UK by the Immigration (European Economic Area) Regulations 2016, which replaced the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). The 2006 Regulations were in force when the Secretary of State made the decision not to deport the Claimant in July 2012. There is no material difference for present purposes between the two sets of Regulations (“the Regulations”).
Articles 27 and 28 of the Directive deal with the substantive conditions that must be satisfied before a Member State may restrict freedom of movement and residence. They...
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Keith Connell v Director of Legal Aid Casework (Legal Aid Agency)
...recent decision of Supperstone J. in R (James Foley) v Secretary of State for the Home Department and Secretary of State for Justice [2019] EWHC 488 (Admin) which is of significance, even though Mr Rule (who also acted for the claimant in that case) told me that an appeal against Suppersto......