R (on the application of Mihai Mormoroc) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Gross,Lord Justice Lindblom |
| Judgment Date | 17 July 2017 |
| Neutral Citation | [2017] EWCA Civ 989 |
| Docket Number | Case No: 2014 / 3245 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2017 |
[2017] EWCA Civ 989
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE COOKE
(Sitting as a Deputy High Court Judge)
CO/6310/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Lord Justice Lindblom
and
Lord Justice Flaux
Case No: 2014 / 3245
Hugh Southey QC (instructed by TRP Solicitors) for the Appellant
Andrew Deakin (instructed by Government Legal Department) for the Respondent
Hearing date: 14 June 2017
Approved Judgment
Introduction
The appellant appeals with the permission of Vos LJ against the Order of His Honour Judge Cooke, sitting as a Deputy High Court Judge in the Administrative Court at the Birmingham Civil Justice Centre, dated 11 September 2014. By that Order, the judge dismissed the appellant's claim for judicial review of the decision of the Secretary of State to refuse the appellant early release on Home Detention Curfew ("HDC") under section 246 of the Criminal Justice Act 2003 ("the 2003 Act").
The appellant's case seeks to challenge the policy of the Secretary of State contained in paragraph 2.47 of Prison Service Instruction ("PSI") 52/2011 that, in the case of a foreign prisoner who 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, in the case of UK national prisoners and foreign prisoners who are not liable to deportation, eligibility for HDC is governed by PSI 6700 under which release on HDC will normally be granted "unless there are substantive reasons for retaining the prisoner in custody".
The appellant contends that PSI 52/2011 constitutes unlawful discrimination against him on the grounds of nationality, in breach of section 13 of the Equality Act 2010 ("the 2010 Act") and/or Article 14 of the European Convention on Human Rights ("ECHR") and/or Articles 24, 27 and 30 of the European Union Directive 2004/38/EC which sets out the rights of EU nationals to freedom of movement within the EU ("the Citizenship Directive").
The factual background
The appellant, born on 6 June 1988, is a Romanian national. He entered the United Kingdom on 15 August 2009. On 23 July 2012, he was convicted of conspiracy to commit theft and sentenced to 30 months imprisonment. He was therefore a 'foreign criminal' within the meaning of section 32(1) of the UK Borders Act 2007 ("the 2007 Act"), and was potentially liable to deportation under that section and section 3(5) of the Immigration Act 1971.
Since he was a fixed term prisoner within the meaning of section 244 of the 2003 Act, he was eligible for release under automatic early release provisions after serving half that sentence on 5 June 2013.
Section 246 of the 2003 Act empowers the Secretary of State to release prisoners, save those in categories specified in section 246(4), on licence, "at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period" (section 246(1) (a)), which in the case of the appellant would have been on 22 January 2013. However, by virtue of section 246(4) (f), the power does not apply where the prisoner is "liable to removal from the United Kingdom". That phrase is defined in section 259 of the 2003 Act:
"For the purposes of this Chapter a person is liable to removal from the United Kingdom if—
(a) 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 […]"
On a date which cannot currently be identified save that it was prior to 30 January 2013, when Form ICD 350 notifying the appellant that he was liable to deportation was sent to him, the prison authorities at South Yorkshire Assessment Prison where the appellant was detained, contacted the UK Borders Agency ("UKBA") to establish the immigration status of the appellant. This was done using so-called Annex D to PSI 52/2011 in accordance with paragraph 2.45 of that PSI which provides:
"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 CCD.CATD@UKBA.GSI.GOV.UK; fax 0208 760 8650; 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." (Italicised in the original).
Annex D is headed "UKBA Confirmation of Immigration Status for HDC". It contains a series of questions to be answered by UKBA. The relevant questions and answers are set out in the Appendix to this judgment.
The Form was duly completed by UKBA and returned to the prison authorities, again at some stage prior to 30 January 2013, when Form ICD 350 (EEA) was sent. UKBA answered all the questions under 1 "No" and under 2 they answered (i) and (iii) "Yes" and (ii) "No", in other words they indicated that UKBA was still considering deportation/removal action against the prisoner and that they intended to issue an authority to detain (IS91) in the event that the appellant was released from prison. The explanation for this was provided in the "Comments" given by UKBA in answer to 3, which stated:
"The Home Office is considering the prisoner's case and is seeking deportation action against him. The prisoner has not produced any evidence to show ties in the United Kingdom, it is considered that if released he would not maintain contact with the relevant authorities, and as such the Home Office would oppose granting the prisoner HDC privileges."
As already noted, on 30 January 2013, UKBA sent Form ICD 350 to the appellant. This consisted of a letter to the appellant referring to his conviction and saying:
"The Secretary of State has noted your conviction(s) on 18 April 2012 at Leicester Crown Court for Theft and takes a very serious view of your offence(s). In the light of your conviction, the Secretary of State is now considering your liability to deportation on grounds of public policy.
If you feel there are any reasons why you should not be deported to Romania on completion of your sentence, you should submit these in writing… within 20 working days of this notification…
If you do not reply in writing within this time, the UK Border Agency will decide the question of deportation on the basis of information known to us.
Completing the questionnaire below giving as much detail as possible and also submitting documentary evidence to support the statements you have made in the questionnaire will assist us in fully considering your case."
The Form then referred to the right of appeal against any decision to deport him and gave the One-Stop Warning. The Form then set out the detailed questionnaire for his completion. The appellant signed a Confirmation of Conveyance on 3 February 2013 confirming that he had received the ICD 350 Form and completed the Questionnaire.
On 11 April 2013, the appellant's solicitors wrote to the Prison Service querying why he had not been released on HDC. The Prison Service responded on 17 April 2013 saying the process was being held up because he was of interest to UKBA and that, if the intention was to ultimately deport him, he might not be granted HDC anyway. On 25 April 2013 his solicitors wrote a Judicial Review Pre-Action Protocol letter to the Prison Service and on 5 May 2013, the Prison Service responded that he was presumed unsuitable for HDC due to: "Immigration's intention to detain him once his sentence is complete. [He] can apply for HDC if he feels he has exceptional circumstances." The appellant then issued the application for Judicial Review which is the subject of this appeal.
On 20 May 2013, the Secretary of State served on the appellant a Notice of Decision to Make a Deportation Order and Form IS.91 authorising his detention under immigration powers. The appellant was released from prison under automatic early release provisions on 5 June 2013 and detained under immigration powers pending deportation. The appellant appealed the decision to make a Deportation Order to the First Tier Tribunal, which dismissed his appeal on 13 August 2013. On about 27 August 2013, he indicated that he did not intend to seek permission to appeal further to the Upper Tribunal and wanted to return to Romania as soon as possible. He signed Early Removal Scheme paperwork to that effect. On 7 September 2013, he was deported.
The legal framework and the relevant provisions of PS 52/2011
I have already set out sections 246 and 259 of the 2003 Act. Section 3(5) of the Immigration Act 1971 provides that: "A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good". Section 32 of the 2007 Act, headed "Automatic Deportation" makes the deportation of a "foreign criminal" automatically deemed "conducive to the public good" and requires the Secretary of State to make a deportation order subject to the application of the exceptions in section 33. Section 32 provides, inter alia, as follows:
"32. Automatic deportation
(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 Condition 2 applies
(2) Condition 1 is that...
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