Generally speaking, those who are sentenced to a significant determinate term of imprisonment in the Crown Court are conditionally released from custody after they have served one half of their determinate sentence under provisions now residing in the Criminal Justice Act 2003. A foreign national sentenced to imprisonment may, again generally speaking, also be recommended by the sentencing court for deportation. A deportation order may then be made at the appropriate time by the Secretary of State. Some foreign nationals resist the making of a recommendation for deportation or the making of a deportation order; they may for a variety of reasons want to stay in the United Kingdom. By contrast there may be circumstances in which a foreign national actually wants to be deported, no doubt perhaps because they want to go home but also in this case because the implementation of statutory provisions could mean that they are released from custody in order to be deported earlier than they would otherwise be released, that is to say earlier than the halfway point of their determinate sentence. This is, so it is understood, one of several means of alleviating prison overcrowding. It can result in a person whose headline sentence of imprisonment is for example three years, spending not much more than a year in actual custody.

Section 46A of the Criminal Justice Act 1991 as inserted into that Act by amendment by section 262 and schedule 20 of the Criminal Justice Act 2003 provides for the early removal from prison of persons liable to removal from the United Kingdom. The substance of this provision is that the Secretary of State has a power, but not on the face of it a duty, to remove from prison a prisoner liable to removal from the United Kingdom after he has served the requisite period. For a prisoner sentenced to 18 months’ imprisonment or more, the requisite period is 135 days less than one half of his term of imprisonment. There are exceptions to the operation of this power to be found in section 46A(2). By section 46A(3) the purpose of removing the prisoner from prison has to be to enable the Secretary of State to remove him from the United Kingdom; that is to say to deport him under powers in immigration and asylum legislation, including powers under section 3 of the Immigration Act 1971. So if this power is exercised, a foreign national serving a sentence of imprisonment who does not come within the exceptions in section 46A(2) has the possibility of being released from prison for deportation up to 135 days before the halfway point of his determinate sentence.

A document entitled PSO6000 contains in chapter 9 administrative instructions by the Secretary of State to prisons and prison governors about their part in the early removal scheme for those liable to deportation. This document has no statutory status, but it is a publicly available document which may be said to contain a degree of administrative policy. The relevant bones of it for present purposes are as follows: all deportees to whom the statutory early removal scheme is capable of applying must be considered for removal unless they are statutorily exempt. Those who do not come within the exceptions are presumed suitable for early removal unless there are exceptional and compelling circumstances. Prison governors have to approve them for removal under the scheme unless they are aware of exceptional and compelling reasons to refuse. A timetable has to be closely followed. This has to result in a form called ERS3 being sent to the Immigration and Nationality Department of the Home Office a number of weeks before the start of the 135-day period for the prisoner in question. The Immigration and Nationality Department has a criminal case work team in Croydon whose task is to consider the matter upon receipt of the ERS3 form. By means of this consideration the Secretary of State has to decide whether to make a deportation order. If he decides to do so, the ERS3 goes back to the prison endorsed with that decision and in due course the prisoner is removed from prison for deportation. The general idea is that this should happen at the beginning of or early within the 135-day period. This would no doubt be the wish of both the prisoner, if he wants to be deported, and the Secretary of State who wants to relieve prison overcrowding.

However, PSO6000 chapter 9 does not appear to promise that this will happen and there are passages in it which contemplate the possibility of delay, see in this respect the paragraph headed Policy on page 19, the paragraph headed “Delays” on page 22 and the paragraph headed “Oversights” on page 23. It is true that these paragraphs do not expressly refer to purely administrative delay at Croydon but nevertheless these instructions to prisons do not appear to promise that any particular timetable will necessarily be achieved at Croydon, which will achieve the prisoner’s release on any particular date of the 135-day period. PSO6000 chapter 9 says that the early removal scheme is designed closely to resemble the home detention curfew scheme, a statutory scheme for the early release of prisoners who live in the United Kingdom. Baroness Scotland had said as much when the Criminal Justice Bill was before the House of Lords in November 2003.

The applicant, Charlesworth Christian, is a national of Antigua. He was convicted and sentenced to a period of three years’ imprisonment for the importation of class A drugs. A recommendation was made for his deportation so he came within section 3(6) of the Immigration Act 1971. His sentence started on 20 May 2005. His conditional release date halfway through that sentence was 7 July 2006. Since he was a foreign national liable to removal, he became eligible under the early removal scheme 135 days before his conditional release date; that is, on 23 February 2006. On 12 December 2005 the criminal case work team in Croydon received a completed ERS3 form from his prison. No steps were then taken to process this. On 25 February 2006 the prison completed a second ERS3 form which was received by the criminal case work team on the same date. Again, no steps were taken. The reason for this was that the criminal case work team in Croydon were understaffed.

On 18 May 2006 a claim form was issued in the Administrative Court in which the applicant challenged the Secretary of State’s then failure to make a decision as to whether to act in line with the recommendation made in the ERS3 form for his removal to Antigua under the early removal scheme. On 23 May 2006 Calvert-Smith J granted permission to bring these judicial review proceedings. Spurred on no doubt by this, a decision to remove the applicant under the early removal scheme was made on 6 June 2006. Notice of intention to make a deportation order was served on the applicant on 8 June 2006. He signed a disclaimer confirming that he wished to be returned to Antigua and he did not intend to exercise his right of appeal against the decision to make a deportation order. He signed that on 9 June 2006 and that was sent to Croydon and he was removed from the United Kingdom pursuant to this procedure on 21 June 2006, that is to say within the period during which he was eligible for removal under the early removal scheme but towards the very end of it. After various interlocutory steps Newman J heard and determined the judicial review claim on 4 July 2006. He dismissed it. His long and careful judgment, given extempore, may be found at [2006] EWHC 2152 Admin. It contains much detail which I shall not repeat for the purposes of the present application.

The grounds of challenge argued before Newman J are conveniently set out in paragraph 8 of the appellant’s notice before this court, which is in these terms: the claimant mounted his challenge to the Secretary of State’s administration of the early removal scheme under three separate heads:

A claim for damages was not pursued before Newman J. No case was made before him that Mr Christian had been falsely imprisoned nor was any claim based on article 5 of the European Convention on Human Rights pursued other than allusively.

Newman J in substance decided that section 46A did not impose a statutory obligation to remove foreign nationals, subject to deportation orders from prison, on any particular date. The section was discretionary, not mandatory, and a foreign national prisoner who had in fact been removed from prison within the 135 day period, as the applicant had, could not maintain a claim for breach of statutory duty. He next decided that PS6000 was not capable of giving rise to a legitimate expectation that the Secretary of State would act in accordance with a specific timetable. There was no promise deducible from that document that a prisoner eligible for early removal would be removed at the earliest date in the 135-day period nor at any particular date thereafter. The nature of chapter 9 of PS6000 was that of giving instructions to the prison service and there were clear passages in it, to which I have alluded, to the effect that delays might occur. As to the case that unexplained or inadequately explained delay by the Secretary of State, except only to say that it arose from lack of sufficient staff, amounted to maladministration which should be regarded as unacceptable and unreasonable in a Wednesbury sense, Newman J held that it was not the function of the court to carry out a management enquiry when the applicant had in fact been removed from prison within the 135-day period.

The applicant sought to appeal against Newman J’s decision by appellant’s notice dated 18 July 2006. The grounds of appeal sought to challenge each of the three aspects of the decision to which I have briefly referred. On 16 November 2006 Buxton LJ refused permission to appeal on the papers. He wrote as follows:

The application for permission was renewed orally before Laws LJ on 20 December 2006. Mr Knafler then represented the applicant. The hearing was preceded by, and Laws LJ considered, an applicant’s statement written and signed by Mr Knafler which said:

2.1. S 46A, CJA 1991, does not expressly require the Home Office to remove a FNP (foreign national prisoner) on the ERED (early release eligibility date); it provides a power to effect removal during the period (in this case) that starts 135 days before the halfway point of the sentence and ends at the halfway point;

2.2. PSO 6000 (prison service order 6000) does not promise that the Home Office will remove FNP on the ERED; it acknowledges that the Home Office has as a target the removal of FNP on or as close as possible to the ERED, but indicates that this target might not always be met as the result of practical and legal difficulties, examples of which are given.

That in short confined the application for permission to one ground only; that is to say the maladministration Wednesbury ground, and I have no doubt that Laws LJ so regarded it despite Mr Knafler’s reference to a couple of sentences in his short judgment. Laws LJ was concerned with two things. He said this in his judgment:

Laws LJ in the circumstances in which I have described adjourned the application for permission with the appeal to follow if permission were granted and he said this: “I would have thought that the matter would not take more than half a day.” That to me is another indication that Laws LJ reckoned that he was dealing with, and forwarding to this constitution of this court, an application for permission to appeal on a single surviving ground.

Since then, however, the application has grown to an unrecognisable extent with the object of turning it into a public interest test case. There is an application dated 8 March 2007 to amend the appellant’s notice by recasting it entirely. This retains the three original grounds of appeal but wishes to add grounds alleging false imprisonment and violation of article 5 of the European Convention. A skeleton argument now alludes to a claim for just compensation. These were not in substance before Newman J at all. The amended grounds seek to reintroduce the two main substantial grounds of appeal which were abandoned before Laws LJ as being unarguable. A long and careful skeleton submission seeks to support all these grounds, including those which it is proposed to add by amendment by Mr Knafler, having reconsidered so as to resurrect the points which he had abandoned and to make submissions in support of the previously unargued grounds. A witness statement supports the contention that this court should conduct an entirely academic exercise, as I see it in the nature of an academic seminar, because similar delays are said to have occurred in a significant number of deportation cases eligible for early removal, and because a large number of such cases have not been processed by the expiry of the 135 days, which are not the facts of this case.

The time estimate for the application doubled in these circumstances, although the court listed the case for half a day in compliance with Laws LJ’s indication. Mr Knafler in effect accepts that he should not be permitted to introduce false imprisonment and article 5 of the Convention because they were not argued before the judge. That to my mind knocks the stuffing out of the proposed test case.

I would refuse permission to amend the grounds of appeal. I would add that in my judgment it is a misuse of this court’s procedure to attempt to convert a half-day application for permission to appeal on a single ground into a full-scale test case appeal for which half a day would plainly be inadequate and which seeks to include grounds which were never argued before the judge. This does not, however, criticise Mr Knafler’s and Mr Jones’ genuine professional aim to be able to argue these points in this or another case.

Further, what remains of the proposed appeal, that is to say the grounds of the original application for permission, is plainly academic and I would decline to entertain it on public interest grounds, since, without the proposed amended additional grounds, it is not in my view a suitable vehicle to make a decision intended to go beyond the facts of this case. Mr Knafler has helpfully referred us to what was said in the House of Lords in a case of (R) Salem v SSHD[1999] AC 450 at page 456G, where it was there said that the discretion to hear disputes, even in the area of public law, must that be exercised with caution, and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so; as for example, but only by way of example, where a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated, so that the issue will most likely need to be resolved in the near future.

In my judgment, as I say, this is simply not a suitable vehicle for a test case of the kind that is envisaged, not least because large parts of the argument intended to be advanced were not advanced before the first instance court. In saying this, I would accept that it would be technically open to Mr Knafler to pursue an application for permission in this court on all three original grounds, even though he abandoned two of them before Laws LJ. But as I say I would refuse permission on all these grounds as a matter of discretion on the grounds alluded to in the case of Salem; that is to say because the appeal is academic for the applicant and the matter does not come before this court in a suitable form or as a suitable vehicle for a public interest test case.

For these reasons I would refuse the application to amend and I would refuse permission to appeal.

I, too, would refuse the application to amend and the application for permission appeal for the reasons that my Lord, Lord Justice May, has given.

I agree.