Mormoroc, R (On the Application Of) v The Secretary of State for Justice

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 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.

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 the person is sentenced to a period of imprisonment of at least 12 months.

[...]

(4)

For the purpose of section 3(5) (a) of the Immigration Act 1971 (c.77), 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 of the 2007 Act is headed “Exceptions” and provides, inter alia, as follows:

“33.

Exceptions

(1)

Section 32(4) and (5)—

(a)

do not apply where an exception in this section applies (subject to subsection (7) below)

[...]

(2)

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.

[...]

(4)

Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties.

[...]

(7)

The application of an exception—

(a)

does not prevent the making of a deportation order;

(b)

results in it being assumed neither that 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 or 4.”

The effect of section 259 of the 2003 Act is reflected in paragraph 2.46 of PSI 52/2011 which provides:

“In relation to those categories of prisoners outlined at 2.44a above – i.e. automatic (2007 UK Borders Act) and non-automatic (1971 Immigration Act) deportation cases – there needs to have been a decision to deport before the prisoner is made statutorily ineligible for HDC. Currently, the decision to deport is conveyed via an ICD 3805 and a deportation order (ICD 3813 or 3814) in automatic deportation cases and via an ICD1070 in non-automatic deportation cases.” [Emphasis in the original]

Paragraph 2.47 deals with the situation where a prisoner has been notified of liability to deportation via Form ICD 350, but there has not yet been a decision to deport. It is thus the situation which covered this appellant and it is the application of that policy to the appellant which is the primary target of the appellant’s challenge by way of judicial review. That paragraph and 2.48 which is also of some relevance, provide as follows:

“2.47

Where the prisoner has been notified of liability to deportation (currently notified via an ICD 350 or ICD 350 AD), but there has not been a decision to deport, the prisoner is notprecluded from consideration for release on HDC. However, the fact that there is a current intention to deport on release, plus any additional information from UKBA, must be taken into account in considering suitability for HDC. Given the resettlement purpose of HDC, such prisoners should be presumed unsuitable to be considered for release on HDC unless there are exceptional circumstances justifying release. For example, where UKBA has confirmed that deportation is unlikely to be effected for the foreseeable future, and they do not intend to detain the prisoner on release from prison. Where there are exceptional circumstances, the prisoner may be risk assessed for release on HDC but it must be assumed at this stage that the prisoner will be deported at some point after release from prison. This factor should be taken into account, along with any other relevant information, when conducting the risk assessment, including the likelihood of compliance with HDC conditions. [Emphasis in the original]

2.48

An IS91 (authority to detain under immigration powers) does not, of itself, make a prisoner statutorily ineligible for release on HDC, but it does mean that the prisoner cannot be released into the community when it comes into force at the point the prisoner is released from the sentence. Therefore, the issuing of an IS91 serves to defeat the objective of release on HDC. A prisoner who has been issued with an IS91 should be advised that they are unsuitable for HDC because they cannot meet the criteria to be released into the community for resettlement purposes at present but that suitability for HDC will be re-assessed if the IS91 is withdrawn. UKBA will notify the prison immediately it has been decided to abandon deportation proceedings and/or withdraw the IS91, or if a decision to deport has been made.”

As I have already noted at [3] above, the essence of the appellant’s complaint is that the policy in paragraph 2.47 of PSI 52/2011 discriminates against the appellant on the grounds of nationality. The various provisions upon which Mr Hugh Southey QC relies on behalf of the appellant are as follows. First, section 13 of the 2010 Act which provides:

“13.

Direct discrimination

(1)

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Under section 6, the “protected characteristics” include race; and by virtue of section 9 “race” includes nationality and ethnic or national origins. It is, of course, well established that no defence of justification can operate where direct discrimination under section 13 is made out.

Mr Southey QC also relies upon Article 14 of the ECHR which provides:

“The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In contrast to the position under section 13 of the 2010 Act, under Article 14, a difference in treatment can be justified if it has an objective and reasonable justification.

Mr Southey QC also relies upon the provisions of the Citizenship Directive, in particular Article 24 which provides:

“1.

Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty.”

Mr Southey QC recognises that Article 27 permits host Member States to take decisions restricting the freedom of movement or residence rights of EU citizens, which would thus include deportation of an EU criminal, but the restriction must be proportionate. The Article provides:

“1.

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

Article 27 is qualified by Article 30 which provides:

“1.

The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.”

Before the judge, the key issue was whether, as Mr Southey QC contended, the policy in paragraph 2.47 of PSI 52/2011 was unlawful discrimination against the appellant on the grounds of nationality and thus in breach of section 13 of the 2010 Act and/or Article 14 of the ECHR and/or the provisions of the Citizenship Directive, or whether, as Mr Andrew Deakin contended on behalf of the Secretary of State, the difference in treatment of the appellant, as compared with British prisoners or foreign prisoners not liable to deportation, was not his nationality, but his immigration status.

The judge also had to consider the submission on behalf of the Secretary of State that the claim for judicial review was academic given the facts of the case, in particular that the appellant was detained under immigration powers and subsequently deported. The judge concluded, in relation to his claim for damages upon which Mr Southey QC relied, as he did before us, to counter the suggestion that the claim and the appeal were academic, that the appellant would not have been able to prove any substantial loss, on the basis that the inference must be that he would never in fact have been released from prison early on HDC, because UKBA would have detained him under immigration powers, as they duly did when he was released from prison. However, the judge decided that it was appropriate to decide the case on the merits. He accepted that the issues raised were of general public importance and that it was unlikely that any other case could reach court for a fully reasoned decision in the short period between eligibility for HDC arising and release under the automatic early release provisions.

On the key issue, the judge dismissed the claim. His essential reasoning was as follows:

The appellant relies upon the following grounds of appeal, as expanded in Mr Southey QC’s skeleton argument:

The question arises whether, given that the appellant was detained by UKBA pursuant to immigration detention powers and then deported, indeed agreed to return to Romania, the present appeal is academic. This was a matter which the Court raised with Mr Southey QC at the outset of the hearing. Mr Southey QC submitted that the appeal was not academic because the appellant intended to pursue his claim for damages for failure to release him on HDC. Like the judge, I am unimpressed with that submission, which seems unreal. I agree with the judge that the appellant could never have established any substantive loss, as it is to be inferred that he would always have been detained by UKBA under immigration powers even if HDC had been theoretically available.

Mr Southey QC submitted that the case raised an issue of some significance as to the legality of depriving foreign prisoners of the opportunity to be released on HDC, in circumstances where they might never in the event be deported and would stay in the UK. Although I am sceptical as to whether that issue truly arises on the facts of this case, since not only did UKBA indicate an intention to deport this appellant and serve him with notice of deportation, but he was in fact deported, we allowed the appeal to proceed, though this should provide no encouragement to others with academic cases: see Hamnett v Essex County Council [2017] EWCA Civ 6; [2017] 1 WLR 1155. It should also be observed that many of Mr Southey QC’s submissions about the policy being discriminatory were made by reference to factual scenarios which were not this case, such as the foreign prisoner who cannot be deported because one of the section 33 exceptions applies.

Before considering the parties’ submissions, I propose to set out what the cases which have previously considered HDC decided. The first relevant authority is the decision of the Divisional Court in Brooke v Secretary of state for Justice [2009] EWHC 1396 (Admin). In that case, the applicant was a British citizen sentenced to ten years imprisonment. Under the PSI in force at the time, because he was sentenced to more than four years imprisonment, he was presumed unsuitable for release on HDC unless exceptional circumstances existed. He complained that foreign nationals also sentenced to more than four years imprisonment, who were liable to deportation under section 259 of the 2003 Act could be released 270 days before the expiry of their custodial term under section 260 of the 2003 Act, as part of a scheme intended to effect early removal. He contended that this difference in treatment amounted to unlawful discrimination on the grounds of nationality contrary to Article 14 of the ECHR. In rejecting this argument, Blake J giving the principal judgment, said at [15] and [20]-[21]:

“15.

I do not accept that serious offenders who are foreign nationals liable to summary removal are in the same position as serious offenders who are not. Their situations are not comparable and are not in an analogous situation. Removal or deportation is administrative action to which some foreign nationals are subject because of a combination of their immigration status and their offending. Indeed, the consequences of removal and prohibition on return might be regarded by some as at least as severe as continuing to serve a sentence in prison, but they are liable to such sanction for reasons to do with removability, and that does not amount to discrimination on the grounds of nationality, because they are precisely in different positions.

20.

As the difference in the statutory regimes under section 246 and 260 make clear, the eligibility for early removal for the foreign nationals is their removability, the fact that they can be removed at all. There are a whole class of people who could not be removed. They include British citizens, Commonwealth nationals who have the right of abode under the Immigration Act 1971, Commonwealth nationals resident here before 1st January 1973, EEA nationals with residence rights under European Community law that may survive their offending, as well as any foreign nationals with very strong private family life or other reason to prevent their removal. They would not be removable. They would be in the same position as British citizens who, as a matter of domestic and international law, cannot be expelled from their own country. This represents a wide diversity of people from different citizenships and ethnic origins. There is really no indication to racial distinction made by using the criteria of removability, which is the criteria identified which by the statute. There is not even citizenship itself which is the entire basis for the distinction.

21.

I therefore do not consider that this is a case where there are any grounds to believe that suspect grounds have been relied upon as the basis of distinction in treatment. In any event, in my judgment, there would have been abundant justification for this measure. The Secretary of State is entitled to conclude that it is in the public interest that serious offenders sentenced to determinate terms are not at liberty until they have served their minimum term. Removal of any foreign nationals who fall into this class and denial of home detention curfew to British nationals has the same substantive effect.”

Sir Anthony May P in his concurring judgment was of the same view that the difference in treatment was not on the grounds of nationality but because foreign national offenders were liable to be removed. He said at [30]:

“30.

The essential point, in my view, is that the position of, and statutory release arrangements for, prisoners who are liable to be removed from the United Kingdom are not analogous with those for prisoners who are not so liable to be removed. The different regimes are in place not because of differences in nationality, but because the first class of prisoner is liable to be removed and the second is not. The two situations are not comparable. Release on home detention is to be seen as a relaxation of a custodial sanction. Release for the purposes of removal is to enable a different sanction from imprisonment in this country to be brought into effect. Such prisoners are not released into the community.”

In R (Francis) v Secretary of State for Justice and Secretary of State for the Home Department [2012] EWCA Civ 1200, the appellant was a Jamaican national who was sentenced to two years imprisonment. The appellant challenged the then current policy, paragraph 11.1 of PSI 4630, which provided that prisoners in respect of whom an IS91 had been issued were statutorily ineligible to HDC. As Males J noted in R (Serrano) v Secretary of State for Justice and Secretary of State for the Home Department [2012] EWHC 3216 (Admin) at [45], prior to the relevant prison sentence, the appellant had already established before the AIT that deportation to Jamaica would result in a breach of Article 3 of the ECHR, because her life would be at risk there and, by the time of the hearings in the Divisional Court and the Court of Appeal, it was known that her challenge to the Secretary of State’s decision, that she did not fall within Exception 1 in section 33 of the 2007 Act, had succeeded on appeal before the AIT. She was thus within the exceptions and could not be deported, albeit that that had not been finally determined at the time when she would have been eligible for HDC. As Males J pointed out, that put her in a stronger position than the applicant in Serrano, whose position remained to be determined at the time of the hearing, however strong it appeared to be. The appellant in Francis was clearly in a stronger position than the appellant in the present case, who had been deported by the time of the hearing before the judge.

The Divisional Court in Francis [2011] EWHC 1271 (Admin) decided that this policy was wrong in law, since under section 259 of the 2003 Act, statutory ineligibility arises only when a decision to deport has been notified. However the Divisional Court refused her challenge that the issue of an IS91 was not a valid reason for refusing HDC. At [38] of the judgment, Toulson LJ said:

“38.

The HDC scheme permits the release of a prisoner during a limited period (up to 135 days) before the end of the 'requisite custodial period' for the specific purpose of managing more effectively the transition of the offender from custody back into the community. The issue of the IS 91 meant that the claimant could not then be released into the community. In that respect its practical effect was the same as the making of a deportation order. Nor can the decision be said to be contrary to the policy contained in PSO 4630, i.e. that HDC should normally be given to any eligible prisoner, because that involves a blinkered reading of the document. It clearly did not envisage granting HDC to a prisoner who could not be released into the community by reason of the existence of an IS 91, although it wrongly stated this to be a statutory bar.”

At the conclusion of oral argument before the Divisional Court, counsel for the appellant sought to raise a new argument, that the refusal of HDC constituted discrimination on the grounds of nationality contrary to Article 14 of the ECHR in combination with Article 5. The Divisional Court refused permission to amend, in part because of the lateness of the application, but mainly because in the absence of a challenge to the statutory provisions themselves, specifically section 246(4) of the 2003 Act, the argument would inevitably fail. At [58], Toulson LJ said:

“58…The claim, which was not advanced or foreshadowed at the time of the hearing, does not include any argument that section 246(4) (f) of the CJA 2003 itself contravenes articles 5 and 14 of the Convention. That is the critical provision which creates an exception from the HDC scheme in the case of a prisoner who is liable to removal from the United Kingdom. (The claimant's detention after 11 November 2009, when she became statutorily ineligible for HDC because of the Home Secretary's decision that she was liable to deportation, has always been accepted to have been lawful.) If a challenge had been made to the compatibility of section 246(4)(f) with the Convention, the Home Secretary would no doubt have argued that it was objectively justifiable and proportionate to exclude from the HDC scheme persons who are liable to deportation, having regard to the limited nature and purpose of the HDC scheme – i.e. to permit the release of a prisoner up to 135 days before the date on which they would otherwise have been released as a better way of managing their return from custody into the community. If the statutory exclusion of prisoners liable to deportation from the HDC scheme is compatible with the Convention (and the contrary has not been argued), I do not see how it can be argued that it nevertheless contravenes the Convention for the State to refuse HDC to a person whose detention has been authorised by the Home Secretary while considering whether the mandatory deportation provisions of section 32(5) of UKBA 2007 apply.”

The Court of Appeal dismissed the appeal both on the grounds originally advanced and in relation to the proposed amendment to rely upon Article 14 of the ECHR. In upholding the decision of the Divisional Court to refuse permission to amend the grounds, Pill LJ said this at [40]-[42]:

“40.

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.

41.

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.

42.

The issue of different treatment as between national and foreign prisoners was considered in Brooke v Secretary of State for Justice […] and I agree with the approach. [He then cited [30] of the judgment of Sir Anthony May P]”

As was accepted on behalf of the appellant, the facts in R (Serrano) v Secretary of State for Justice and Secretary of State for the Home Department [2012] EWHC 3216 (Admin) were materially identical to those in the present case. The claimant was a Spanish national who had come to the UK in 2007 and who was sentenced to two years imprisonment in 2012 for production of cannabis. At the time that he became eligible for HDC in September 2012, no deportation order had been made, but on 16 February 2012 the Secretary of State had sent a letter and Form ICD 0350 (EEA) in materially identical terms to that set out at [10] and [11] above. Following similar correspondence between his solicitors and the prison to that set out at [12] above, UKBA confirmed to the prison authorities in June 2012 that deportation was under consideration and that, in the event of his release, UKBA intended to detain him. The prison HDC clerk then wrote to his solicitors saying that UKBA would be reviewing the case in the near future and that, as a consequence, he was presumed unsuitable for release on HDC. His solicitors then wrote a letter before claim contending that a presumption of unsuitability for HDC when no decision had yet been taken by UKBA was unlawful. The response to that letter stated that, although he was not statutorily ineligible for HDC, in accordance with PSI 52/2011, he would need to demonstrate exceptional circumstances in order to obtain such release and that, because UKBA had advised it would be issuing an IS91 to detain the claimant beyond his sentence release date, the question of HDC would not be progressed further.

The claimant sought judicial review of that decision under PSI 52/2011 on the grounds that the policy was unlawfully discriminatory under Article 14 of the ECHR read with Article 5 and/or section 13 of the 2010 Act and/or Article 24 of the Citizenship Directive. In addition he contended that the policy gave rise to an unacceptable risk of illegality and was thus unlawful in accordance with the principle established in R (Medical Justice) v SSHD. It can thus be seen that the claimant in Serrano raised the same grounds of challenge as the appellant in the present case. On 1 November 2012, after the claim for judicial review had been issued but before the hearing in front of Males J, UKBA issued a decision to deport the claimant.

Males J rejected each of these grounds of challenge. In relation to the discrimination claim he found that he was bound by the decision of the Court of Appeal in Francis. At [63] of his judgment he summarised what that case decided:

“63.

In my judgment… Francis decides as follows:

(a)

First, a prisoner's immigration status is relevant to whether he or she should be granted HDC. A prisoner who is going to be deported falls outside the scope of HDC, the purpose of which is to manage resettlement in the community.

(b)

Second, and in the absence of any challenge to the statutory provisions themselves, once a decision has been made by the SSHD that a prisoner will be deported pursuant to the automatic deportation provisions of section 32 of the UK Borders Act 2007, the prisoner becomes statutorily ineligible for HDC. Despite the possibility that there may be a successful challenge to the SSHD's decision, there is then no obligation on the SSJ to consider the grant of HDC unless and until the SSHD's decision is in fact successfully challenged.

(c)

Third, in a case where no decision has yet been made by the SSHD whether a prisoner who is subject to the automatic deportation provisions is entitled to rely on one of the exceptions in section 33, the Prison Service should seek information from UKBA as to the prisoner's immigration status and UKBA's proposals.

(d)

Fourth, the SSJ, acting through the Prison Service, has a duty to consider HDC when no decision on deportation has yet been made. However, in a case where an IS 91 has been issued, it will in general be a lawful exercise of the SSJ's discretion to refuse release on HDC, having regard to the purpose for which such release exists.

(e)

Fifth, exercise of the SSJ's discretion in accordance with these principles does not constitute unlawful discrimination contrary to Article 14 of the Convention in combination with Article 5…”

At [64] to [67] of his judgment, Males J rejected various arguments raised by Mr Southey QC for the claimant which sought to distinguish Francis:

“64.

In respect of the period until notification of the decision to deport dated 1 November 201[2], the present case can be distinguished from Francis on the facts in one respect, which is that whereas in Francis an IS 91 had in fact been issued, in the present case the SSHD had merely indicated that if necessary an IS 91 would be issued. I do not, however, regard this distinction as material. In both cases the relevant consideration for the exercise of the SSJ's discretion to release on HDC is whether the prisoner is likely to be a person whose resettlement into the community needs to be managed. If that is not the case when (as in Francis) an IS 91 has actually been issued, it is equally not the case when UKBA has made clear that if necessary an IS 91 will be issued.

65.

Absent the arguments on unlawful discrimination, and in the absence of any challenge in this case to the statutory provisions, Francis therefore prevents any successful challenge to the refusal of HDC release in this case. In relation to discrimination, Mr Southey is compelled to submit that, as a decision on permission to amend which may not have been the subject of full argument, the decision in Francis is not binding. I do not accept this. The discrimination argument (that refusal of HDC to foreign prisoners in respect of whom no decision had yet been made constituted unlawful discrimination contrary to Article 14) was an argument of law not dependent on further factual findings and there is no reason to suppose that it was not fully developed in the course of what was, I note, a two day hearing before the Court of Appeal. The argument was dismissed by the Court of Appeal on its merits and not for merely procedural reasons.

66.

Mr Southey submits also that Francis is distinguishable because it was not concerned with EU law, Miss Francis not being an EU national. That is true, but the issues were whether there was discrimination in the availability of HDC release on the ground of nationality and, if so, whether that could be justified. The answer to the first question does not depend at all on whether the discrimination complained of arose under EU law or the Convention.

67.

In my judgment the reasoning of Pill LJ at [40] to [42] set out above constitutes a determination both (1) that difference in treatment regarding release on HDC based on liability to removal from the United Kingdom is not discrimination on the ground of nationality (see in particular [41] and the citation from Brooke at [42]) and (2) that in any event such difference in treatment, even if on the ground of nationality, is clearly justified and so is not a breach of Article 14 (see [40]). I consider that I am bound to follow this reasoning. However, even if that is not so, this is a considered decision with which both Lloyd LJ and Lewison LJ agreed, which is at least strongly persuasive and which I ought to follow.”

At [68] and [69] he said that this disposed of all the grounds of challenge and rejected Mr Southey QC’s argument that the position was different under the Citizenship Directive because of the requirement for notification under Article 30:

“68.

This is sufficient to defeat the claimant's challenge on Article 14 and, as indicated at [49] above, once it is found that there is no discrimination based on nationality for the purpose of that Article, the remaining arguments based on the Citizenship Directive and the Equality Act 2010 must fall away. Equally, the claimant's reliance on an unacceptable risk of illegality in accordance with the Medical Justice[2010] EWHC 1925 (Admin) principle cannot arise. If there is no discrimination on the ground of nationality, there is no risk of illegality and that is so regardless of a prisoner's individual merits on the issue of removability.

69.

Mr Southey submits that the position is different under the Citizenship Directive because Article 30 requires that a decision to restrict freedom of movement under Article 27 must be notified in writing with full reasons. He submits that unless and until that is done, freedom of movement cannot be restricted and therefore the claimant, as an EU citizen, must be treated as someone who cannot be removed. I reject this submission. It is clear that, unless and until a decision is made and notified (which has now been done by means of the 1 November 2012 decision, subject to any successful appeal) the claimant cannot actually be removed, but Article 30 does not require the SSHD or the SSJ to treat the claimant for the purpose of considering HDC release as a person who cannot be removed when that question is still being considered and a decision has not yet been made.”

In support of his contention that the differential treatment of foreign prisoners was discriminatory because it was on grounds of nationality, Mr Southey QC for the appellant placed particular emphasis on the fact that the policy in PSI 52-2011 applies before any decision has been taken by the Secretary of State as to the application of the exceptions in section 33 of the 2007 Act. Thus, it caught both those foreign nationals who could in due course be removed and those who could not because one of the exceptions in section 33 applied to them. What distinguished all these foreign nationals from British nationals who were eligible for HDC was nationality.

He submitted that this was direct discrimination on grounds of nationality contrary to section 13 of the 2010 Act. He relied upon the judgment of Lord Phillips of Worth Matravers PSC in R (E) v Governing Body of JFS [2009] UKSC 15; [2010] 2 AC 728 at [16] and [21], in support of the submission that the test in determining whether there was such direct discrimination was what were the facts that the discriminator considered to be determinative when making the relevant decision and that the motive for making those facts determinative is irrelevant. Here nationality was what was determinative because people who were “foreign criminals” were being treated differently from criminals who were UK nationals. No defence of justification could operate.

Mr Southey QC submitted that these submissions were also supported by the Citizenship Directive, Article 24 of which requires equal treatment of EU citizens residing in a host member state with the nationals of that member state. Whilst Article 27 permitted restriction of freedom of movement if that was proportionate, he submitted, as he had done before Males J in Serrano, that such freedom of movement cannot be restricted unless and until notification in writing had been given with full reasons under Article 30, which had not happened at the time of the decision to refuse HDC.

He also submitted that Article 14 of the ECHR was engaged. He relied upon a series of recent decisions of the Supreme Court. In R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56; [2017] AC 365, the claimant, was born in Jamaica in 1985 and had been resident in the UK since the age of 4. His mother was Jamaican and his father was British, and they were not married at the time of his birth. He was therefore not entitled to automatic British citizenship, although he would have been if his parents were married at the time of his birth or at any time thereafter. In the absence of his parents entering into marriage, he could have made an application to be registered as a British citizen. Had he made such an application before he reached the age of 16, he would have been granted citizenship; but after that time he was required to show that he was of good character. This he could not do, as he had been convicted of a number of serious offences. In March 2011, the Secretary of State served notice upon him that he was liable to automatic deportation as a ‘foreign criminal’ under section 32(5) of the 2007 Act, and in due course made a deportation order and set removal directions. The claimant sought reconsideration of the decision that section 32(5) applied, but the Secretary of State maintained her position. She also certified his claim as ‘clearly unfounded’, so that he had no right of appeal within the UK. He sought judicial review of that decision, alleging that the nationality provisions which had denied him automatic British citizenship at the time of his birth and subsequently (which would have meant he could not be deported) discriminated against him as an illegitimate child, contrary to Article 14 of the ECHR (read with Article 8).

The Court of Appeal rejected the application of a “but for” test of causation under the Convention, holding that the immediate cause of the deportation order was his conviction for serious offences and that the denial of citizenship was only one of the background factors: see per Arden LJ at [34] of [2016] EWCA Civ 22. They allowed the appeal by the Secretary of State. That decision was reversed by the Supreme Court which accepted his argument that there was discrimination under Article 14 which could not be justified. In the only judgment, given by Baroness Hale of Richmond DPSC, the Court said:

“29.

It is not in dispute that birth outside wedlock is a “status” for the purpose of article 14. It has been so regarded at the very least since the landmark case of Marckx v Belgium (1979) 2 EHRR 330. It is no co-incidence that the laws of both Scotland and England and Wales were changed within a few years of that decision. Nor can it be seriously disputed that there is here a difference in treatment between people who are otherwise in an analogous situation on the ground of that birth status: had the appellant’s parents been married to one another he would automatically have become a British citizen and not been liable to deportation no matter how badly he had behaved.

30.

As has been said many times, “For the purpose of article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, e.g., Inze v Austria (1988) 10 EHRR 394, para 41; Genovese v Malta, para 43). It is also clear that birth outside wedlock falls within the class of “suspect” grounds, where “very weighty reasons” are required to justify discrimination.

…

34.

But in this case what needs to be justified is the current liability of the appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they would not be so liable had their parents been married to one another at any time after their birth. That is a present distinction which is based solely on the accident of birth outside wedlock, for which the appellant is not responsible, and no justification has been suggested for it. It is impossible to say that his claim that Exception 1 applies, based on article 14 read with article 8, is ‘clearly unfounded’”.

Mr Southey QC relied upon this judgment as endorsement by the Supreme Court in the context of Article 14 of a “but for” test of causation. Whilst there were other intervening causes and as the Court of Appeal had said the claimant could have regularised his status, the Supreme Court had concluded that was irrelevant.

In Essop v Home Office [2017] UKSC 27; [2017] 1 WLR 1343, Baroness Hale again giving the only judgment highlighted the distinction between direct and indirect discrimination at [25]:

“A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP [provision, criterion or practice] and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.”

Mr Southey QC also relied upon R (Coll) v Secretary of State for Justice [2017] UKSC 40; [2017] 1 WLR 2093. The claimant was a woman who had lived in London for her entire adult life, and whose family were based in London. She was convicted of a serious offence and, on release, was required to live in an ‘Approved Premises’ (what used to be called a probation hostel). All Approved Premises were single-sex and across England and Wales, there were 94 for men and 6 for women (with no provision for women in London.) There was therefore a much greater risk that female prisoners who were released to Approved Premises would be situated far from their homes and families (as indeed the claimant was) than men. She sought judicial review, arguing that this amounted to both direct discrimination under section 13 of the 2010 Act, and discrimination contrary to Article 14 of the ECHR (read with Article 8). That argument was accepted by the Supreme Court allowing the appeal. The only judgment was again given by Baroness Hale, who said at [27]-[31]:

“27.

Ms Rose QC, on behalf of the appellant, argues that this case is on all fours with the well-known case of R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] 1 AC 1155. Birmingham City Council maintained a system of selection for secondary school places but, for historical reasons, it had fewer places at selective schools for girls than for boys. This meant that the pass mark for girls in the entrance examinations was higher than for boys. This was treating the girls less favourably than the boys because of their sex […]

28.

Mr Chamberlain QC, for the Secretary of State, raises a new argument before this Court. Not all women suffer the detriment complained of. Some are placed reasonably close to home. Therefore, there cannot be direct discrimination, because that requires exact correspondence between the disadvantaged class and the protected characteristic, as held by this Court in Patmalniece v Secretary of State for Work and Pensions (AIRE Centre intervening) [2011] UKSC 11; [2011] 1 WLR 783 and discussed at some length in Preddy v Bull (Liberty intervening) [2013] UKSC 73; [2013] 1 WLR 3741.

29.

However, as Ms Rose correctly points out, the “exact correspondence” test is only relevant where the actual criterion used by the alleged discriminator is not a protected characteristic but something else. In Patmalniece it was not having the right to reside in the United Kingdom; in Preddy v Bull, it was not being married. The question is whether some other criterion is in reality a proxy for the protected characteristic. The best-known example is James v Eastleigh Borough Council [1990] 2 AC 751, where people who had reached the state retirement age were allowed free entry to the council’s swimming pool. The differential state retirement ages for men and women meant that a 61-year-old woman got in free whereas her 61-year-old husband did not. This was held to be direct discrimination on grounds of sex. In this case, there is no doubt what the criterion is. It is sex, which is itself a protected characteristic.

30.

Furthermore, it cannot be a requirement of direct discrimination that all the people who share a particular protected characteristic must suffer the less favourable treatment complained of. It is not necessary to show, for example, that an employer always discriminates against women: it is enough to show that he did so in this case. In the Birmingham case, some of the girls achieved a high enough pass mark to gain a place at a selective school. What all the girls suffered from was the risk that if they did not get a high enough mark, they would not get a place – just as, in the recent case of Essop v Home Office (Border Agency) [2017] UKSC 27; [2017] 1 WLR 1343, all the BME candidates suffered from the greater risk of failing the core skills assessment required for promotion, but of course some of them passed it. In the Birmingham case, some of the girls did of course achieve a high enough mark to get a place. But there were some who achieved a mark which would have been high enough had they been boys but was not high enough because they were girls. That is direct discrimination on grounds of sex.

31.

I can see no valid distinction between the Birmingham case and this one. In this case, all the women who would be required to live in an AP when released on licence suffered the much greater risk than the men that they would be sent to an AP far from their homes and families. The fact that some of them would not suffer this detriment does not mean that those who do suffer it have not been discriminated against.”

Mr Southey QC submitted that Francis was distinguishable from the present case for a number of reasons. First, the appellant there was not an EU national, which was a material difference, given that in this case the Citizenship Directive applied and notice under Article 30 had not been given when the decision to refuse HDC was taken. Francis was also a purely Article 14 case where no consideration was given to the case law on causation, because the appeal related to the refusal of permission to amend. Accordingly the “but for” test of causation was neither applied nor considered. Applying that test, he submitted that at the stage at which the decision was taken in the present case, it was nationality which was the differentiating factor. That was direct discrimination contrary to section 13 of the 2010 Act.

Mr Southey QC submitted that if he were wrong about discrimination being on grounds of nationality, and the relevant distinction was on the basis of immigration status, this was still indirectly discriminatory as a matter of EU law. The applicable PCP was the granting of HDC. The practice of applying the presumption that HDC would be refused (absent demonstration of exceptional circumstances) to people with a particular immigration status led to a systemic disadvantage. In considering the test of justification under EU law, the correct approach to proportionality was to consider whether there was any less restrictive measure that could have been adopted. Here, the less restrictive measure would have been to carry out a full risk assessment, alternatively to take the decision to make a deportation order at an earlier date.

Mr Southey QC also maintained his alternative case that there was an unacceptable risk of illegality. Of the overall category of foreign prisoners served with an ICD 350 Form to whom the policy in PSI 52-2011 was applied, some would be entitled to remain. They could say the only distinction between them and British prisoners who were entitled to HDC was that they were foreign nationals. He submitted that the problem with the policy is that there is inherently a significant risk that people will be denied HDC because no decision has been taken in their case.

On behalf of the Secretary of State, Mr Deakin emphasised that, on the facts of this case, before the ICD 350 Form was sent out, UKBA had completed Annex D to PSI 52-2011 as contemplated by paragraph 2.45 of the PSI, as set out in [7]-[9] above, in which UKBA had informed the prison authorities that they were seeking deportation action against the appellant and intended to issue an IS-91 to detain him on immigration grounds upon his release from prison. The ICD 350 Form was then served on the appellant which notified him of his liability to deportation. It was that which triggered the policy under paragraph 2.47 which was the subject of criticism in these proceedings.

Mr Deakin’s fundamental point was that the HDC scheme applied differently to those foreign national prisoners who were liable to deportation, which included those such as the present appellant who had been notified via the ICD 350 Form that they were “in the frame” to be deported as opposed all prisoners, whether British or foreign who were not so liable to deportation. As Males J had said in Serrano, it was those who are liable to deportation to whom the HDC scheme did not apply. The policy in paragraph 2.47 of PSI 52-2011 is simply designed to fill the gap between those in relation to whom a decision to deport has been notified who are statutorily excluded from the HDC scheme by section 246(4) of the 2003 Act and those who are liable to deportation but in relation to whom a decision has not yet been made.

In those circumstances, Mr Deakin submitted that there was no question of direct discrimination on the grounds of nationality. As for Mr Southey QC’s contention that, even if the difference of treatment was on the basis of immigration status, it was indirectly discriminatory and could not be justified, Mr Deakin submitted that the difference in treatment in the HDC policy had been consistently recognised by the English courts as necessary and justified. He relied upon [40] of the judgment of Pill LJ in Francis and [75] of the judgment of Males J in Serrano.

In relation to the proportionality of the policy, Mr Deakin pointed out that there was only a presumption against a grant of HDC to foreign criminals served with notice of their liability to deportation, and it was always open to such a person to making submissions in support of a claim for HDC on the basis that there were exceptional circumstances. As for Mr Southey QC’s suggestion that less restrictive measures could and should have been adopted, Mr Deakin submitted that it was unclear what it was that the appellant was saying should be “risk assessed”. If it was his prospect of being actually removed, then the policy already catered for that, given that there was only a presumption against the grant of HDC and, if compelling representations were made by a foreign prisoner in the position of the appellant as to why HDC should be granted, then HDC would be granted. Accordingly, the “risk assessment” approach was not less restrictive than the present system.

Mr Deakin submitted that the short answer to the suggestion by Mr Southey QC that another less restrictive measure would be to make the decision to serve a deportation order earlier, is that given the right of appeal against such an order, the order is not actually implemented until the appeal process is exhausted, so making the decision earlier can hardly be said to be a less restrictive measure.

Despite the ingenuity of Mr Southey QC’s submissions that the difference in treatment in the present case was on the basis of nationality, so that the policy in PSI 52-2011 was discriminatory, I cannot accept those submissions. When one looks at the detailed facts of this case and, in particular that UKBA had indicated to the prison that they were seeking to deport the appellant and would detain him under immigration powers upon his release and had notified the appellant in the ICD 350 Form that he was liable to deportation, albeit no decision had yet been taken, it is clear that the policy in paragraph 2.47, that he would not be eligible for HDC unless he showed exceptional circumstances, was not discriminating against him on the grounds of nationality. Rather the basis for the difference in treatment between someone like the appellant who was liable to deportation, albeit no decision had yet been made, and a prisoner (whether a British or a foreign national) who is not so liable is, as Males J noted in [64] of Serrano, that only the latter is likely to be a person whose resettlement into the community needs to be managed.

In my judgment, that difference in treatment is based on liability to be deported or, as Mr Deakin put it, eligibility to be removed. That this and not nationality was the true basis for the difference in treatment was correctly identified by Sir Anthony May P in Brooke at [30], quoted at [32] above and by Pill LJ in Francis at [40]-[42], quoted at [36] above. As Lindblom LJ put it in argument, this difference in treatment is in fact “nationality blind”.

It follows that Mr Southey QC’s submissions about discrimination all fail at the first hurdle, whether framed under section 13 of the Equality Act or Article 14 of the ECHR. The policy in paragraph 2.47 of PSI 52-2011 is not drawing a distinction on the grounds of nationality, but on the basis of liability or eligibility to deportation. In those circumstances, the submissions which Mr Southey QC advanced in relation to the test for causation in discrimination cases are of no avail. Whichever test is applied, the reason for the difference in treatment in this case was not nationality.

Furthermore, I was unimpressed by Mr Southey QC’s attempt to distinguish Francis. In my judgment, Males J in Serrano (which is materially indistinguishable from the present case) correctly summarised what Francis decided and correctly concluded that it was binding upon him. In my judgment, both Francis and Serrano were correctly decided and establish that the difference in treatment under the HDC policy is not based on nationality but on immigration status, so that no question of unlawful discrimination arises.

I agree with Mr Deakin that Mr Southey QC’s points on the Citizenship Directive add nothing to the argument. The answer to his point about Article 30 requiring notice in writing with full reasons of a decision to restrict movement under Article 27 is the one given by Males J at [69] of his judgment in Serrano: “…unless and until a decision is made and notified… the claimant cannot actually be removed, but Article 30 does not require the [Secretary of State] to treat the claimant for the purpose of considering HDC release as a person who cannot be removed when that question is still being considered and a decision has not yet been made.”

Equally, I do not consider that there is any merit in Mr Southey QC’s submission that, even if the difference in treatment is attributable to immigration status, it is indirectly discriminatory, essentially for the reasons Mr Deakin gave. First and foremost, the difference in treatment between those prisoners for whom the HDC scheme is designed to promote resettlement into the UK community and those prisoners who are liable or eligible to deportation is clearly justified and, as Males J said, it is obviously necessary to have a policy to deal with the position of the foreign national prisoner who is liable to deportation but in respect of whom no decision to deport has yet been made.

I am unimpressed by Mr Southey QC’s submissions about the availability of a less restrictive measure. It was unclear what was meant by a “full risk assessment” and Mr Southey QC did not elucidate this point in his oral submissions. Whatever it meant, it seems to me that any risk assessment would have to take account of the fact that UKBA had notified him that he was liable to deportation and had indicated that they would, if necessary, use immigration powers to detain him upon his release from prison. Such a risk assessment would demonstrate that he was not eligible for HDC absent some exceptional circumstances, so it is difficult to see how the supposed risk assessment would differ from the existing policy, let alone be less restrictive.

The alternative “less restrictive measure” of advancing the service of a deportation order is even less convincing. As Mr Deakin said, with the availability of the appeal process, it will still not be known whether the foreign prisoner will in fact be deported until that process is exhausted. In any event, by virtue of sections 246(4) and 259 of the 2003 Act, once the foreign prisoner has been notified of a decision to make a deportation order against him, he is statutorily excluded from the HDC scheme anyway, so it is difficult to see how the advancing of the time of that decision can be described as a less restrictive measure than the current policy.

So far as Mr Southey QC’s point about there being an unacceptable risk of illegality is concerned, that stands or falls with his case on discrimination. As Males J said in Serrano at [68], if there is no discrimination on the ground of nationality, there is no risk of illegality.

For all these reasons, this appeal must be dismissed.

I agree.

I also agree.