Francis, R (on the application of) v Secretary of State for Justice & Secretary of State for the Home Department

This is an appeal by Miss Diana Francis (“the appellant”) from a decision of the Divisional Court of the Queen’s Bench Division (Toulson LJ and Lloyd Jones J) dated 20 May 2011 refusing in part a claim for judicial review to quash decisions of the Secretary of State for Justice (“the Secretary of State”) in relation to her detention in 2009. The court granted a declaration that paragraph 11.1 of Prison Service Order 4630 was wrong in law but refused relief claimed for alleged breach of article 5(1) of the European Convention on Human Rights and false imprisonment. The appellant also claimed a declaration that the Secretary of State’s failure to release her on Home Detention Curfew (“HDC”), when she was eligible for such release, breached her rights under article 8 of the Convention. Damages were claimed for the breach. The court refused permission to amend the claim to allege a breach of article 14 of the Convention read with article 5.

The appeal raises issues on the operation of the scheme for HDC and on the relationship between detention by the prison authorities following imposition of a prison sentence by a court and detention by the immigration authority, the United Kingdom Border Agency (“UKBA”), under powers conferred by immigration legislation. The Secretary of State for the Home Department, responsible for UKBA, remains a party at her own request but no claim against her is now pursued.

The appellant is a Jamaican national who was granted temporary admission to the United Kingdom in 1999. Following earlier convictions for possession of class A drugs, she was convicted on 5 September 2006 on four counts of supplying class A drugs (heroin and cocaine). She was sentenced to 30 months imprisonment and on 19 January 2007 to a consecutive term of 6 months imprisonment for assault occasioning actual bodily harm. On 20 August 2007, the appellant was told that under section 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) she was liable to deportation. She appealed successfully to the Asylum & Immigration Tribunal which, in a determination dated 25 June 2008, concluded that she was guilty of serious criminality and had not rebutted the presumption that she was a danger to the community but that her deportation to Jamaica would involve a breach of article 3 of the Convention because her life would be at serious risk there from criminal elements. The appellant was granted discretionary leave to remain until 16 March 2009.

On 17 November 2008, the appellant was convicted of further offences of possessing heroin and crack cocaine with intent to supply. On 9 December 2008 she was sentenced to concurrent terms of 2 years imprisonment.

The appellant was a fixed term prisoner within the meaning of section 244 of the Criminal Justice Act 2003 (“the 2003 Act”) and, as soon as she had served the “requisite custodial period”, it was the duty of the Secretary of State to release her on licence. In her case, the requisite custodial period was one-half of the sentence. Thus the appellant became entitled to release on 8 December 2009 and was duly notified of that. She remained on licence for the remainder of her sentence, with a liability to recall to custody (sections 249 and 254 of the 2003 Act).

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)). By virtue of section 246(4)(f), the power does not apply where the prisoner is “liable to removal from the United Kingdom”. It is, however, accepted, that the appellant was not so liable until 11 November 2009. In relation to her prison sentence, she became eligible for HDC on 27 July 2009.

The relevance of 11 November 2009 is that on that date UKBA notified the appellant that the Secretary of State for the Home Department had decided that, by virtue of section 32(5) of the UK Borders Act 2007 (“the 2007 Act”), she must make a deportation order against the appellant as a foreign criminal within the meaning of section 32. The Home Secretary had first to consider whether the appellant fell within one of the exceptions under section 33 to the operation of section 32(5) and, in a detailed letter, it was explained that she did not.

On 23 July 2009, UKBA wrote to the appellant in these terms:

Following further representations and letters before claim, the appellant received a letter from the Prison Service on 13 October 2009:

An IS 91 is an authority to detain issued by an Immigration Officer under the power conferred on the Secretary of State for the Home Department in section 36(1) of the 2007 Act. It is not disputed that the issue of an IS 91 in this case was lawful and authorised UKBA to detain under the Immigration Acts. In relation to the immigration detention, which alone could justify detention after 8 December 2009, the appellant applied for and was granted bail by an Immigration Judge on 8 January 2010. On 22 January 2010, her appeal against the Secretary of State’s decision to deport her was allowed on the ground that deportation would contravene her Convention rights under articles 3 and 8.

The central allegation of Mr Husain QC, for the appellant in this appeal is that consideration of the appellant’s claim for HDC was unlawfully delayed. Had HDC been considered, it would have been granted on 27 July 2009 or soon afterwards. That is supported, it is submitted, by the subsequent statement of 13 October 2009 that the assessment conducted at that time “provisionally found [the appellant] suitable for release on HDC.” It is accepted that, an IS 91 (detention authority) having been served, authority to detain would have continued but the grant of bail by an Immigration Judge was highly likely.

Immigration bail, which may be granted under 1971 Act, was granted on 8 January 2010 and would have been granted at an earlier time had the appellant been granted HDC by the Secretary of State, it was submitted. There was no bar to the grant of HDC to a person to whom notice of intention to remove had been given. The submission is that the appellant was unlawfully detained from 27 July 2009 until 11 November 2009. False imprisonment is alleged and damages claimed.

In the present case, as Toulson LJ stated at paragraph 16 of his judgment, with which Lloyd Jones J agreed:

It is common practice for the Home Secretary in appropriate cases to issue an IS 91 near the time when the person will or might otherwise be released from a custodial sentence imposed by a court. Detention under immigration powers will then take effect when detention under the sentence of imprisonment comes to an end.

Prison Service Order (“PSO”) 6700, cited by the Divisional Court, is entitled Home Detention Curfew. It provides, at paragraph 1.4, that the purpose of HDC is “to manage more effectively the transition of offenders from custody back into the community”. For most eligible prisoners, HDC will be a normal part of their progression through their sentence. A risk assessment is conducted before HDC is granted. Suitable accommodation must be available and a person released on HDC will be electronically tagged and subject to various restrictions, notably curfew conditions (section 253 of 2003 Act).

As to the timing of the potential grant of HDC, PSO 6700 provides, at paragraph 5.1.1:

It was submitted that it was the erroneously perceived ineligibility which led to the failure to make a risk assessment at the time stipulated, that is 10 weeks before 27 July. PSO 6700 provides, at paragraph 5.13.3:

The declaration of illegality by the Divisional Court arose from a sentence in a then current Prison Service document PSO 4630 entitled Immigration and Foreign Nationals in Prisons (issued 11 January 2008). Having correctly stated, at paragraph 11.1, that: “Prisoners who are liable to removal are statutorily excluded from HDC”, it was provided:

Paragraph 11.2 of the document provided:

It followed from the Prison Service’s reliance on the erroneous statement in paragraph 11.1 that consideration was not given to the grant of HDC until 13 October 2009 when the Secretary of State “has provisionally found you suitable for release on HDC.” At the time that notification was given, it was stated that the prison authorities had been notified that “UKBA do not wish her to be released until they can effect her removal from the United Kingdom.”

The refusal to grant HDC on 13 October 2009, by which time a favourable assessment had provisionally been made, was considered by Toulson LJ, at paragraph 38:

In response to the claim that detention from 13 October to 11 November 2009, when the decision to deport was notified, was unlawful, Toulson LJ, at paragraph 41, stated:

The court refused permission to amend the claim to allege a breach of article 14 in combination with article 5(1) on the grounds, first, of delay in making the application and, secondly, that if the statutory exclusion of prisoners liable for deportation from the HDC scheme is compatible with the Convention, and it was not argued otherwise, it did not contravene the Convention to refuse HDC to a person whose deportation had been authorised by the Secretary of State for the Home Department while considering whether to take immigration action.

The current guidance from the Secretary of State, effective on 18 November 2011 (PSI 52/2011), that is after the decision of the Divisional Court, provides:

Whether a prisoner is liable to removal from the United Kingdom is a matter for the Secretary of State for the Home Department. It is justifiable for the Prison Service, it was submitted by Mr Kovats QC for the Secretary of State, to seek confirmation from UKBA of the prisoner’s immigration status before making a decision on HDC. Otherwise the Service risks releasing on HDC a person who is, or is about to become, ineligible for HDC. Indeed, it would be irresponsible not to seek such confirmation, it was submitted. The HDC procedure did not contemplate a notional release, that is a release which would be ineffective because of the immigration detention authorised by the IS 91. The discretion conferred by section 246 is a general one.

The Tribunals Judiciary has issued Presidential Guidance (Note 1 of 2011) entitled ‘Bail Guidance for Immigration Judges’. That provides, at paragraph 14:

While accepting that the existence of an IS 91 is a relevant factor when considering whether to grant HDC, Mr Husain submitted that, in the absence of a liability to removal from the United Kingdom under section 246(4)(f), UKBA involvement did not create an additional dimension in the decision making process. The grant of HDC is the norm and the grounds for refusing it are confined to those stated in paragraph 5.13.3 of PSO 6700, cited at paragraph 16 above.

Mr Kovats referred to the many situations in which the power to grant HDC is excluded by section 246(4), including, for example, where the prisoner is subject to a hospital order under section 37 of the Mental Health Act 1983 (section 246(4)(c)). Some of these are comparable with the situation in which an IS 91 has been issued. Mr Husain relied on the absence of an IS 91 category from the excluded categories and the absence of any amendment to section 246 to cover the situation when amendments to the section have been made. The absence of the situation in which an IS 91 has been issued is conspicuous, it was submitted.

There was, in my judgment, a duty on the Secretary of State to give consideration to a grant of HDC. The period of time for which it can operate is short and, as the Prison Service instructions indicate, consideration should be given on the premise that, if HDC is to be granted, it should normally be granted close to the eligibility date. Consideration was not given in this case because it was erroneously believed that it was barred by the existence of an IS 91. That was a breach of duty by the Prison Service.

The further question is where that leads in the circumstances of this case. There must obviously be liaison between the Ministry of Justice and the Home Office, which in the present circumstances means liaison between the Prison Service and UKBA. Where, as in this case, notice of consideration for deportation had been given, it is obviously sensible for the Prison Service to seek information from UKBA as to the foreign prisoner’s status and their proposals. The purpose of HDC is to manage more effectively the transition of offenders from custody back into the community. In the case of a prisoner who is to be deported, resettlement into the community does not arise.

In my judgment, it is highly unlikely that HDC would have been granted in this case had the Prison Service considered, as they should have done, whether to grant it. Had UKBA been aware of the possibility of a grant, their decision making process would have been accelerated. The probability is that they would have taken the decision, which excluded the appellant from eligibility for HDC, at an earlier date, though careful consideration of the appellant’s circumstances was first required. The appellant would then have become a person liable to removal from the United Kingdom under section 246(4)(f) and excluded from consideration for HDC.

In any event, a grant of HDC, once an IS 91 had been issued, was very unlikely even though the grant was not excluded by statute. Given the purpose of HDC, the Secretary of State is most unlikely to have exercised his discretion, and under section 246(1) the discretion is a general one, to grant HDC. He would have been aware of the potential complexity of the Home Secretary’s duties under section 33 of the 2007 Act, and the need for time to perform them. It would not have been unlawful for him to have regard to immigration requirements notwithstanding the absence of reference to them in the then current PSO 6700, at 5.13.3 or elsewhere.

I would not have excluded the claim on the basis that the appellant could not lawfully have been granted HDC on a notional or contingent basis, that is contingent on a grant of immigration bail. However, faced with the actual situation of immigration detention, the grant of HDC, on the present facts, would have been most unlikely. The appellant claims damages on the basis of loss of a chance of bail. For reasons given, the possibility of bail was so remote, and the claim so speculative, that the breach of duty found cannot on the present facts sound in damages.

I add that I do not consider paragraph 11.3 of PSO 4630, recited at paragraph 19 above, to be unlawful. It contemplates co-operation between the Prison Service and UKBA and does assume UKBA’s co-operation but that is unexceptionable. No claim is now made in this case against UKBA. UKBA’s duties under the 2007 Act are often complex and there would have been no basis in this case for a claim based on their lack of co-operation.

On those findings, I can deal with the other heads of claim more briefly. The appellant was lawfully detained by virtue of an order of a criminal court until 8 December 2009. A public law error in relation to HDC does not render imprisonment until that date by the prison authorities unlawful and there is no false imprisonment (R (James, Lee and Wells) v Secretary of State for Justice [2010] 1 AC 553.

The claimants in that case had received indeterminate sentences for public protection (“IPP”) with a short tariff period after which they were eligible for release. There was a failure to make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board their safety for release. It was held that the breach of duty did not make the post-tariff detention unlawful, either at common law or by virtue of article 5(1) of the Convention, the only remedy for such breach of public law duty being declaratory. There was a sufficient causal connection between the conviction and the deprivation of liberty to make it lawful (Lord Hope of Craighead at paragraph 14).

That principle applies with at least equal force to the current sentence during the ‘requisite custodial period’ up to 8 December 2009, by which time the appellant was lawfully detained under immigration powers. Lord Hope contemplated, at paragraph 15, that it was “just possible to conceive of circumstances where the system which the statutes laid down breaks down entirely” but there was no “breakdown of that extreme kind” in that case or in the present one.

On article 8, Mr Husain submitted that once a scheme for early release is provided, article 8 arises in relation to its implementation. Detention, even if lawful, had an adverse effect on the appellant’s private and family life, as compared with HDC, in relation to the appellant’s children, and in particular the very young baby. In my judgment, there is no unlawful detention and HDC would not in any event have been granted. There is no breach of article 8 because the restrictions on private and family life arose from lawful detention and article 8(2) applies.

I also consider the Divisional Court to have been correct in refusing permission to amend the claim to allege a breach of article 14 in combination with article 5. Reliance is placed by the appellant on Rangelov v Germany (application 5123/07) where it was held by the European Court of Justice that there had been a violation of article 14, taken together with article 5, on the ground that the applicant was denied a chance, because of an expulsion order made against him, to complete medical therapy successfully.

The Divisional Court’s reasoning as to delay is persuasive but, in any event, there is a clear justification in substance for the distinction between foreign and national prisoners. A scheme designed to promote resettlement into the UK community cannot be expected to apply on the same terms to those subject to notice of intention to make a deportation order. The case is very different from the denial of medical therapy in Rangelov.

The appellant was treated differently not because she was Jamaican but because of her immigration status. Neither race nor nationality are causally relevant. A scheme designed for reintegration into the community cannot be expected to operate in the same way for those liable to deportation.

The issue of different treatment as between national and foreign prisoners was considered in Brooke v Secretary of State for Justice [2009] EWHC 1396 (Admin) (Divisional Court) and I agree with the approach. Sir Anthony May P, stated, at paragraph 30:

I would dismiss this appeal.

I agree that this appeal should be dismissed. The appeal was very well argued on both sides. I add some observations of my own because of the quality of the argument, and the potential importance of the issues.

Miss Francis appealed successfully against a decision to deport her in 2008, on the basis that her life would be seriously at risk if she were returned to Jamaica. Her appeal against the further decision that section 32(5) of the UK Borders Act 2007 applied to her, made on 11 November 2009, was successful on 22 January 2010 on the same basis.

On 9 December 2008 she received a 24 month sentence of imprisonment for possession of heroin and cocaine with intent to supply. By then she had three children and was pregnant with a fourth. Care orders had been made in the county court in respect of the three in 2007, allowing Miss Francis only letter box contact with them. The fourth, Mercedes, was born while she was in prison on 17 June 2009, and was the subject of an interim care order within days. However, on 16 September 2009 she was returned to her mother’s custody in prison.

By virtue of section 244 of the Criminal Justice Act 2003, Miss Francis would become entitled to be released on licence on 8 December 2009. Under section 246 of that Act, as of 27 July 2009 (135 days earlier) she became entitled to be considered for discretionary release under Home Detention Curfew (HDC). Before that date arrived, her detention under Immigration Act powers (section 36 of the 2007 Act) was authorised by a form known as IS91, issued on 23 July 2009. She ceased to be entitled for consideration for release on HDC on 11 November 2009 when the Secretary of State for the Home Department (SSHD), acting by the UKBA, decided that section 32(5) of the 2007 Act applied to her.

When she reached the halfway point in her prison sentence, she was released from imprisonment, but she continued to be detained under immigration legislation powers, by virtue of the IS91, until she was given immigration bail on 10 January 2010.

Miss Francis’ complaint, by way of these proceedings for judicial review, is that she should have been considered for release on HDC on or from 27 July 2009, that if she had been so considered, she would have been released under section 246, and that although upon such release from her prison sentence, she would have remained in detention because of the authority given by the IS91, nevertheless, she would at that stage have been able to apply for immigration bail, which (as is shown by what happened in the end) she would have obtained. That would have resulted in her release from detention, even if upon conditions, and would have given her contact at an earlier date with Mercedes.

The Divisional Court accepted Miss Francis’ assertion that the policy of the Secretary of State for Justice (SSJ) in respect of HDC for those in relation to whom deportation was being considered, as then promulgated in Prison Service Order 4630 paragraph 11.1, was legally erroneous as regards one sentence (a proposition not contested on behalf of SSJ) and that this had resulted in Miss Francis’ request for release on HDC not being considered on the merits, as it should have been, between 27 July 2009 and 5 October 2009. Toulson LJ explained, however, at paragraph 38 of his judgment (quoted by Pill LJ at paragraph 21 above) that the practical effect of the issue of an IS91 was the same as that of making a deportation order. Although a person in respect of whom an IS91 had been issued was not, in legal terms, “liable to removal from the UK”, as provided for in section 246(4)(f), and was therefore not statutorily excluded from the scope of HDC, the existence of the IS91 meant that, while it subsisted, the prisoner could not be released into the community, and since the point of HDC is to manage effectively the transition of the offender from custody into the community, it could not sensibly be applied to someone for whom that transition was not open.

By a Respondent’s Notice, later withdrawn, the SSJ contended that a person could be at the same time in prison under a sentence of a criminal court and also in immigration detention. That is inconsistent with a decision of the Administrative Court, and the point was not pursued before us, just as it had not been below. However, in a second skeleton argument Mr Kovats for the SSJ advanced another proposition. This was that release on HDC was not possible in respect of someone who was subject to immigration detention because the conditions subject to which release by way of HDC is permitted could not be satisfied.

Release under section 246 must be on terms which include a curfew condition: see section 250(5) and section 253. By contrast, under section 244 a curfew condition is not a standard requirement, but is an option: see the Criminal Justice (Sentencing) (Licence Conditions) Order 2005, article 2 (standard conditions) and article 3 (optional conditions), in particular article 3(2)(f).

By virtue of section 253, a curfew condition is one which requires the released person to remain, for periods of time specified in the condition, at a place for the time being so specified, and includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified: section 253(1). The periods must not be less than 9 hours in any one day (apart from the first and last days of the period when the condition is in force): section 253(2).

Mr Kovats argued that it would be altogether artificial and absurd to apply that language to the situation of a person who is in prison under a criminal sentence and who, if released from that custody, would immediately pass into detention under immigration powers. The relevant HDC condition would have to specify that the person in question would have to remain at the relevant place of detention for the whole of the relevant period of detention, not just for 9 hours in each day, and it would be somewhat ridiculous to provide for his or her whereabouts to be subject to electronic monitoring while in immigration detention. So, Mr Kovats submitted, if all that would happen on the grant of release by way of HDC is that the person in question would pass from criminal imprisonment to immigration detention, by way of a merely notional release, this is something that cannot have been intended to happen under section 246, and therefore it should be held not to be open as even a possibility.

There is obvious force in this contention, though Mr Husain made the fair forensic point that, if it is right, it is odd that it has not featured in the Respondent’s submissions at any stage below, nor in the Respondent’s first skeleton argument on the appeal or the Respondent’s Notice, being unveiled only at the stage of the Respondent’s second skeleton argument, a few days before the hearing.

It seems to me that, odd as it may seem to apply the HDC regime to someone who, upon release from custody under a criminal sentence, would pass into immigration detention, it would be wrong to read the legislation as excluding that possibility in the absence of an express provision to that effect. Section 246 sets out with careful detail the cases to which it does not apply. One of those cases is where the prisoner is liable to removal from the UK, as already noticed. That, in turn, is defined in some detail in section 259. It seems to me that it would be inconsistent with this approach to read the provisions of section 253 as to curfew conditions as also, by implication, excluding from HDC persons who, though not within section 259, are subject to immigration detention.

Turning back to the main point, however, the issue is as to the relevance and effect of the subsistence of an IS91 in relation to a prisoner who is eligible to be considered for release on HDC. In the end Mr Husain did not contend that it is entirely irrelevant, but he argued that the SSJ (or in effect the Prison Service) could not properly defer indefinitely to the SSHD (or UKBA) or simply wait for a decision as to what action should be taken as regards the prisoner’s immigration status. His point was that, though the Prison Service could properly check with UKBA as to the immigration position, it must otherwise get on with its own task of reviewing the application for HDC release on a proper and expeditious timetable, and that it could only properly hold up such a decision if it was told that an immigration decision was imminent.

That submission provided the basis for his argument that PSO 4630 was wrong in law not only as regards the second sentence of paragraph 11.1 but also at paragraph 11.3, quoted by Pill LJ at paragraph 19 above. In agreement with Pill LJ I would dismiss this contention, which seems to me to place an inappropriate degree of stress on one phrase, taken out of context. Paragraph 11.2 of PSO 4630 said that consideration for possible release on HDC should be carried out in the same way for a foreign prisoner as for a domestic prisoner, until immigration status is confirmed. That is proper advice. However, given the inevitable acceptance that immigration status is relevant to this issue, I do not see that there is anything wrong with the guidance at paragraph 11.3: it could not be appropriate to come to a decision about HDC in relation to a foreign prisoner without having found out the position taken by UKBA. It does not seem to me to be necessary, for this purpose, to address a situation in which UKBA delays inappropriately in deciding what position to adopt as regards a given person. The person concerned can always have recourse to the remedy of judicial review if it is argued that either the Prison Service or UKBA is guilty of too much delay in discharging its duties.

Turning from the general to the particular, Mr Husain argued, at one stage, that Miss Francis would have been released on HDC soon after 27 July 2009, and at any rate by the end of August, if proper consideration had been given to her case at that stage. She would then have been able to apply for immigration bail, which she would have obtained within a fairly short time, and this, quite apart from giving her a degree of liberty, would have put her in a better position to pursue her aim of getting more contact with her latest child. He accepted that, until 8 December 2009 the terms of immigration bail would have reflected those required by way of HDC release, but even so she would have secured a significant degree of freedom in that way. It is for the loss, in that way, of the chance of earlier contact with Mercedes that Miss Francis seeks damages under article 8. Since Mercedes was returned to her in prison on 16 September 2009, the claim depends on showing that, if the HDC application had been considered properly and promptly, Miss Francis would probably have been given such release (albeit only into immigration detention) in time to allow her to apply for and get immigration bail, so as to be reunited with Mercedes before 16 September.

It seems to me that this submission is seriously over-optimistic, at best, and in practical terms altogether unrealistic, and would be so even if the relevant time scale was up to 11 November 2009, rather than to 16 September. If the Prison Service had addressed her request for HDC release in and from July 2009, it may be that it would have come sooner to the same conclusion as it later did, namely that she was provisionally eligible for such release, but given the existence of the IS91 it would not have been able or willing to decide in favour of such release without contacting UKBA and finding out its position. If UKBA had been made aware of this active consideration by the Prison Service of a possible HDC release of Miss Francis it seems to me overwhelmingly likely that UKBA would have brought forward its own consideration of her position. The probability is, therefore, that she would have been found to be subject to section 32(5) of the 2007 Act all the sooner, and therefore no longer eligible at all for HDC release. I agree, for that reason, with Pill LJ that Miss Francis has not shown that she suffered any disadvantage or loss as a result of the Prison Service’s failure to address her request for HDC release properly and on a correct legal basis between July 2009 and 5 October 2009. Accordingly, the Divisional Court was correct to do no more than grant a declaration on this point.

As regards the separate claim for damages under article 5 or for false imprisonment, I agree with Pill LJ that this is impossible, on either basis. Miss Francis’ detention was lawful under the sentence of the criminal court, and accordingly the imprisonment was not false, nor was there any breach of article 5. Mr Husain recognised that his argument that lawful detention could be vitiated, for these purposes, by a breach of a public law duty such as that of due consideration of an application for release on HDC was novel and would involve a notable extension of the existing case law. In my judgment it is incorrect and wholly unjustified.

I do not need to add anything about the rejected application to add a claim under article 14 in combination with article 5, on which I entirely agree with Pill LJ and with the Divisional Court.

I agree.