Francis, R (on the application of) v Secretary of State for Justice & Anor [2011] EWHC 1271 (Admin)

[2011] EWHC 1271 (Admin)Case No C0/12294/2009QUEEN'S BENCH DIVISIONDIVISIONAL COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 May 2011
Before
LORD JUSTICE TOULSONMR JUSTICE LLOYD JONES
Between
THE QUEEN ON THE APPLICATION OF DIANA FRANCISClaimantHMP BRONZEFIELDDefendantsSECRETARY OF STATE FOR JUSTICEDefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Laura Dubinsky (instructed by Immigration Advisory Service) for ClaimantSteven Kovats QC (instructed by Treasury Solicitor) for DefendantsHearing Hearing date: 17 February 2011
Judgment
[1]The claimant is a citizen of Jamaica. At the time of the matters giving rise to the complaint she was serving a sentence of two years’ imprisonment and was therefore potentially liable to deportation on the completion of her sentence. Her complaint is that her eligibility for early release under the Home Detention Curfew Scheme (HDC) was not properly considered. She applies for judicial review and seeks the following remedies – 1. an order quashing the decision not to release her on HDC; 2. a declaration that the Justice Secretary’s published guidance on the release of foreign national prisoners on HDC is unlawful; 3. a declaration that the failure to release her on HDC breached her rights under article 8 of the European Convention; and 4. damages. In further written submissions made after the hearing the claimant seeks permission to amend her grounds of review to include claims that she is entitled to damages for wrongful detention under domestic law and/or article 5 and that she suffered a breach of article 14 in combination with article 5.

Home Detention Curfew

[2]A person who is sentenced to a fixed term of imprisonment (as distinct from an indeterminate sentence) is ordinarily entitled under the terms of the Criminal Justice Act 2003 (CJA 2003) to release on licence after serving one half of the nominal sentence. The period up to that point is referred to in the Act as “the requisite custodial period”.[3]Under section 246 the Justice Secretary has power, subject to certain conditions, to release a prisoner on HDC at an earlier date. The earliest permitted date is 135 days prior to the end of the requisite custodial period. The scheme is subject to exceptions, one of which is where “the prisoner is liable to removal from the United Kingdom”: section 246(4)(f).[4]Section 259 provides that a person is liable to removal from the United Kingdom if, among other things, “he is liable to deportation under section 3(5) of the Immigration Act 1971 and has been notified of a decision to make a deportation order against him.”[5]Under section 3(5)(a) of the Immigration Act 1971 (IA 1971) a person who is not a British citizen is liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”.[6]In 2007 Parliament decided that the rules for deportation of foreign criminals should be strengthened. The UK Borders Act 2007 (UKBA 2007) established a new mandatory regime for deportation of foreign criminals which supplements the discretionary regime created by the IA 1971. A foreign criminal is defined in the UKBA 2007 as including any non-British citizen who is convicted in the United Kingdom of an offence and is sentenced to a term of imprisonment of at least twelve months. Section 32 provides:
“(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, 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).”
[7]Section 33 sets out a number of exceptions. Section 33(2) states:
“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.” (b) the United Kingdom’s obligations under the Refugee Convention.”
[8]However, this exception is itself qualified by section 33(7). This states:
“The application of an exception – (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that the 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…” (b) results in it being assumed neither that the 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…”
[9]The effect is that the UKBA 2007 ordains that the deportation of a foreign national who receives a sentence of twelve months’ imprisonment or more is conducive to the public good (regardless of any Convention considerations), and it permits the Home Secretary to make a deportation order, albeit that enforcement of the order may not be compatible for the time being with the person’s Convention rights.[10]A decision that section 32(5) applies is subject to a right of appeal to an Immigration Judge under section 82 of the Nationality, Immigration and Asylum Act 2002, as amended by section 35 of the UKBA 2007.[11]The Home Secretary has certain powers of detention for purposes of immigration control under schedule 3 to the IA 1971. In particular, the Home Secretary may authorise the detention of a person against whom a deportation order is in force or who has been given notice of a decision to make a deportation order against him (and is not already detained in pursuance of a sentence or order of the court): paragraphs 2(2) and (3) of schedule 3. These powers are supplemented by section 36 of the UKBA 2007. In particular, section 36(1) provides:
“a person who has served a period of imprisonment may be detained under the authority of the Secretary of State – (a) while the Secretary of State considers whether section 32(5) applies and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.” (a) while the Secretary of State considers whether section 32(5) applies and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.”
[12]It is clear from the words “who has served a period of imprisonment” that the power of detention under section 36(1) only applies after the period of imprisonment has come to an end, no doubt because detention under immigration powers would be unnecessary while the person is still serving a prison sentence. In practice it is therefore common for the Home Secretary to issue a written detention authority, known as an IS 91, near to the time when the person will or might otherwise be released. The detention under immigration powers will take effect when the detention under the sentence of imprisonment comes to an end.[13]The Justice Secretary’s general policies regarding, first, HDC and secondly, immigration and foreign nationals in prisons, are set out respectively in Prison Service Orders (PSOs) 6700 and 4630.[14]PSO 6700, paragraph 1.4, states that the purpose of HDC is “to manage more effectively the transition of offenders from custody back into the community”, and that for most eligible prisoners HDC will be a normal part of their progression through their sentence. However, before being granted HDC, prisoners must pass a risk assessment and have suitable accommodation approved by the Probation Service. A person released on HDC will be electronically tagged and subject to various restrictions.[15]The purpose of PSO 4630 is to ensure proper cooperation and understanding between the prison service and the Border Agency (part of the Home Office) regarding foreign nationals in prisons. It includes a section headed Home Detention Curfew. This states: “11.1 Prisoners who are liable to removal are statutorily excluded from HDC. In determining a prisoner’s immigration status, where an IS 91 has been issued or there is a court recommendation for deportation the prisoner is statutorily excluded. However, if the prison does not hold an IS 91, the prisoner may still be liable to removal as the notification of a decision by [BA] is not always accompanied by an IS 91. 11.2 Until the point at which [BA] confirm the prisoner’s status, they are eligible to be considered for release on HDC and the assessment process must be carried out as it would be for a domestic prisoner.… 11.3 If, following completion of the HDC risk assessment, the Governor or Controller is minded to grant release to the prisoner on HDC, a final decision must not be made until confirmation has been received of the prisoner’s immigration status…” (Original emphasis.)[16]Unfortunately this section contains an error. The first sentence of paragraph 11.1 is correct. A prisoner who is liable to removal from the UK is excluded from HDC by section 246(4)(f) of the CJA 2003. However, the second sentence of paragraph 11.1 is wrong. An IS 91 (or detention authority) will typically be issued by the Home Secretary under section 36 of the UKBA 2007 while considering whether section 32(5) applies or while pending the making of a deportation order. That is the purpose of the detention power given by section 36(1). However, the prisoner does not become statutorily “liable to removal from the United Kingdom”, and therefore ineligible to be considered for HDC, until the Home Secretary deems his deportation to be conducive to the public good and the person has been notified of a decision to make a deportation order against him: section 259(a) of the CJA 2003. The mistake has led to the present case.

Facts

[17]The claimant is a citizen of Jamaica. On 6 March 1999 she requested leave to enter the UK as a visitor. This was refused but she was granted temporary admission. She absconded.[18]On three occasions between October 2001 and September 2005 the claimant was convicted of possession of class A drugs and received non-custodial sentences. On 5 September 2006 she was convicted of four counts of supplying class A drugs (heroin and cocaine) for which she was sentenced to thirty months’ imprisonment. On 19 January 2007 she was sentenced to a consecutive term of six months’ imprisonment for assault occasioning actual bodily harm.[19]On 20 August 2007 the Home Secretary decided to make a deportation order under section 3(5)(a) of the IA 1971. She appealed against the decision to the Asylum and Immigration Tribunal and won her appeal. In its determination, dated 25 June 2008, the tribunal concluded that she was guilty of serious criminality and had not rebutted the presumption that she was a danger to the community, but it found that her deportation to Jamaica would result in a breach of article 3 because her life would be at serious risk from criminal elements. Her upbringing had involved her in gangs from a young age. She had been tried for murder following a fatal stabbing but acquitted. In the course of those proceedings she gave a statement to the prosecution which implicated another person. She would be liable to retribution on her return. After her successful appeal, the claimant was granted discretionary leave to remain in the United Kingdom until 16 March 2009.[20]On 17 November 2008 at Luton Crown Court the claimant was convicted of further offences of possessing heroin and crack cocaine within intent to supply, and on 9 December 2008 she was sentenced to concurrent terms of two years’ imprisonment.[21]On 26 March 2009 the Border Agency wrote to the claimant inviting her to state why she should not be subject to automatic deportation under section 32(5) of the UKBA 2007. The claimant replied through the Refugee Legal Centre on 23 April 2009. The letter referred to the decision of the AIT dated 25 June 2008 and asserted that her deportation would be in breach of article 3.[22]The date on which the claimant was due to become statutorily eligible for HDC was 27 July 2009 (135 days before the half way point in her sentence when she would be entitled to be released on licence, subject to the possibility of her detention under immigration powers).[23]On 23 July 2009 the Home Secretary issued an IS 91. It stated that the Home Secretary was considering whether section 32(5) of the UKBA 2007 applied and added the following comments:
“On 17 November 2008 Miss Francis was convicted of possessing class A controlled drug with intent to supply –crack. Also possessing a class A controlled drug with intent to supply – heroin - and was sentenced to twenty-four months imprisonment. There is a risk of re-offending and causing harm to the public.”
[24]On the same day the Border Agency wrote to the claimant:
“A notice of intention to make a deportation order against you was made on 26 March 2009. The Secretary of State has considered whether you should be released on 27 July 2009 but has decided that in all the circumstances this would not be appropriate. Under paragraph 2(2) of schedule 3 of the Immigration Act 1971 a detention order was made on 23 July 2009. A copy of that order has been given to you and it authorises your detention until a deportation order has been made.”
[25]On 28 July 2009 Refugee and Migrant Justice (RMJ), formerly known as the Refugee Legal Centre, wrote to the governor of the prison where the claimant was being held saying that the claimant had informed them that the prison had refused her application for early release on HDC and asking for the reasons.[26]The senior HDC administrator at the prison replied on the same day, saying that the claimant had not been refused HDC but that the process could not commence until the immigration issues had been investigated.[27]On 30 July 2009 RMJ were told by the prison that the claimant had a conditional release date set for 8 December 2009 and a sentence expiry date of 8 December 2010.[28]On 31 July 2009 RMJ pressed the prison for confirmation that the claimant had been refused HDC and for a statement of the reasons. On 10 August 2009 the prison replied that “the reason that Ms Francis was refused HDC is that she has an IS 91 on her file”.[29]On 22 September 2009 the Prisoners’ Advice Service wrote to the prison asking to be updated on progress in respect of the claimant’s application for HDC. On 1 October 2009 the senior HDC administrator replied:
“Further to your letter dated 22 September 2009 regarding the above prisoner, as Ms Francis has an IS 91 on her she is not eligible for HDC. This order has been made by the Ministry of Justice and I enclose a paragraph that has been taken from the PSO 4630 which relates to Immigration and Foreign Nations Prisoners for HDC.”
The letter enclosed paragraph 11.1 of PSO 4630.[30]Meanwhile, on 25 September 2009 RMJ sent letters before claim to the prison governor and the Justice Secretary pursuant to the pre-action protocol. The letter to the prison notified an intention to challenge as unlawful the prison’s refusal to consider the claimant’s eligibility for HDC because she was being considered for deportation and had been issued with an IS 91. The letter to the Justice Secretary notified an intention to challenge the maintenance of PSO 4630 which “incorrectly and misleadingly states that where a form IS 91 (a detention authority form) has been issued to a foreign prisoner, he or she is not eligible for HDC”.[31]On 5 October 2009 the director of the prison replied to RMJ:
“We have been advised by the Ministry of Justice that Ms Francis can apply for HDC as her case is still pending with UKBA. However we still need to seek advice from the UKBA to see if they are still interested in her case because as you are aware an IS 91 has been served on her. When we have further information on this case we will inform you of the decision of the UKBA.”
[32]This letter led to an immediate response from RMJ that the IS 91 and the Border Agency’s “interest” in the claimant were “nothing to the point”. The claimant was not statutorily exempt from HDC and the obligation of the prison was to consider substantively her application without further delay.[33]On 13 October 2009 a prison official informed RMJ that the claimant’s application for HDC had been “processed”, but that the prison had been notified that “UKBA do not wish her to be released until they can effect her removal from the United Kingdom”. On the same day the prison issued the claimant with a notification of refusal of HDC. The reasons stated were:
“The assessment of risk for Home Detention Curfew has provisionally found you suitable for release on HDC. However, since an IS 91 (Detention Order) has been served on you, authority is provided under the Immigration Act 1971 for HMP Bronzefield to detain you on behalf of UKBA. Should UKBA revoke the Detention Order, HDC will be reconsidered.”
Should UKBA revoke the Detention Order, HDC will be reconsidered.”[34]On 11 November 2009 the Border Agency notified the claimant of the Home Secretary’s decision that she did not fall within any of the exceptions from automatic deportation in section 33 of the UKBA 2007. The letter addressed her claims under articles 3 and 8 and rejected them. The claimant appealed against the decision. She also applied for bail after she had served the requisite custodial period of her sentence. On 8 January 2010 she was granted bail by an immigration judge. On 22 January 2010 her appeal against the Home Secretary’s decision was allowed on the grounds that her deportation would contravene her Convention rights under articles 3 and 8. In its determination the tribunal concluded, among other things, that matters had changed since the risks posed by the appellant were assessed in the first determination and that the claimant had rebutted the presumption that she constituted a danger to the community.

Issues

[35]The following issues arise: 1. Is the guidance in PSO 4630 wrong in law? 2. Was the decision on 13 October 2009 refusing to release the claimant on HDC unlawful? 3. Did the claimant’s detention after the date when she first became statutorily eligible for HDC amount to false imprisonment under domestic law and/or a breach of article 5? 4. Was there a breach of article 8 entitling the claimant to damages? 5. Should the claimant be given permission to amend her claim to allege a breach of article 14 in combination with article 5?

PSO 4630

[36]Mr Kovats QC did not dispute that the second sentence of paragraph 11.1 is wrong. I will come back to the question what, if any, order the court should make in that regard.

The lawfulness of the decision on 13 October 2009

[37]Ms Dubinsky argued that since(a) the claimant was assessed as provisionally suitable for release on HDC and(b) she was not statutorily ineligible, the refusal to release her on HDC was unlawful. The only reason for the refusal was the IS 91, but that was not a statutory bar and was not a proper reason for the refusal.[38]I am not persuaded by that argument. I note that although the correspondence shows confusion and misunderstanding about the legal position on the part of the prison authorities until 5 October 2009, the letter from the prison to RMJ on that day shows that the prison authorities by then appreciated that the claimant was not barred by the terms of the statute from applying for HDC. The refusal was not made on the mistaken basis that IS91 was a statutory bar, but the IS 91 was nevertheless the express reason for the refusal. I do not see this as perverse or irrational. 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.[39]This issue arises if I am wrong on issue two and the Justice Secretary ought to have used his power to release the claimant from detention pursuant to her sentence of imprisonment, whereupon she would have continued to be detained under the IS 91 issued by the Home Secretary. The claim relates to the four week period from the date of the Justice Secretary’s refusal of HDC (13 October) to the date of the Home Secretary’s decision that she was liable to deportation (11 November).[40]It was not originally part of the claimant’s case that she had a cause of action for false imprisonment during this period. The point arose during the argument in relation to the claimant’s allegation of a breach of article 8. The essence of the article 8 claim is that the wrongful refusal of HDC resulted in interference with the claimant’s private and family life. The court suggested to Ms Dubinsky that there was a difficulty with this argument. The interference with the claimant’s private and family life was a direct consequence of her detention, but she was not disputing that the detention was pursuant to a lawful sentence. The claimant was granted 7 days in which to make any application for permission to amend her grounds to allege that her imprisonment during the relevant period was unlawful at common law and/or under article 5.[41]In supplemental written submissions Ms Dubinsky submits that the consequence of the Home Secretary’s wrongful failure to release the claimant on HDC was that her detention during the four week period constituted the tort of false imprisonment under domestic law and a breach of article 5.1. I disagree. Even if the Justice Secretary’s refusal of her application for HDC was an unlawful exercise of his discretion, her detention during the relevant period continued to be detention pursuant to a sentence lawfully passed. It was therefore neither tortious under domestic law nor in breach of article 5.1, which excludes “the lawful detention of a person after conviction by a competent court”. A person sentenced to a determinate sentence of imprisonment is required by law to serve the requisite custodial period, subject to the Justice Secretary’s discretion to allow earlier release. A breach of the Justice Secretary’s public law duty in the exercise of that discretion does not affect the continuing validity of the sentence or the length of the requisite custodial period: cf R (Noorkoiv) v Home Secretary [2002] EWCA Civ 770, [2002] 1 WLR 3285 and R (James) v Home Secretary [2009] UKHL 22, [2010] 1 AC 553[42]Furthermore, even if that were wrong, the prison governor had been served with an IS 91, which gave him lawful authority to continue to detain the claimant. Ms Dubinsky sought to answer this point by submitting that the case was analogous to that of an individual wrongly arrested by a police officer on suspicion of committing a particular offence who might have been lawfully arrested on suspicion of a different offence. The analogy is a false one. There is no “might have been” about the claimant’s liability to be kept in custody during the relevant four week period or her knowledge of it. She was informed by letter on 23 July 2009 that the IS 91 had been issued and that it authorised her detention until a deportation order was made. To claim that she thereafter suffered unlawful deprivation of her liberty in the period before the Home Secretary decided that she was liable to deportation is artificial and unreal. For all these reasons the argument that the claimant has a claim for damages for false imprisonment or breach of article 5 during the four week period is unsustainable.

Was there a breach of article 8 entitling the claimant to damages?

[43]A person who is lawfully detained, whether under a sentence of the court or under immigration powers, does not lose all their rights under article 8. But some interference with a person’s private and family life is an unavoidable concomitant of detention. That applies in this case. I cannot see that the claimant can advance a claim under article 8 in respect of interference with her personal and family life which did not go beyond the inference inevitably caused by her detention, if the detention was lawful.[44]Ms Dubinsky seeks to argue that the claimant was discriminated against on grounds of her nationality in her access to the HDC scheme in that(a) from 27 July 2009 to 13 October 2009 she was not considered for release although she was statutorily eligible; and(b) on 13 October 2009 she was refused release notwithstanding that she was statutorily eligible and was considered provisionally suitable for release.[45]The sole reason for the non-consideration and subsequent refusal of her application was the issue of an IS 91 on 23 July 2009 authorising her detention under immigration powers. Ms Dubinsky submits that the claimant thereby suffered discrimination in relation to her article 5 rights, which contravened article 14, because if she had been a British citizen she would have been treated differently.[46]In support of that submission Ms Dubinsky relies of the decisions of the House of Lords in A v Home Secretary [2004] UKHL 56, [2005] 2 AC 68, and R(Clift and Others) v Home Secretary [2006] UKHL 54, [2007] 1 AC 484, and various Strasbourgauthorities. Clift concerned provisions enabling the release on parole of prisoners sentenced to terms of imprisonment of not less than four years (long-term prisoners). The Home Secretary adopted a different approach in the case of long-term prisoners who were subject to deportation orders from that which would have been applied by the Parole Board in relation of other prisoners. This discrimination was held to be unlawful. Lord Bingham said at [18] that:
“…the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5, and differential treatment of one prisoner as compared with another, otherwise than on merits of their respective cases, gives rise to a potential complaint under article 14.”
[47]The House of Lords was not satisfied that there was objective and proportionate justification for the differential treatment of prisoners subject to deportation orders. Ms Dubinsky submits that the present case is directly comparable.[48]I would refuse the claimant’s application to amend her grounds of review to raise this issue. The ordinary period of limitation for such a claim is one year and the application is therefore long out of time, but the time interval is not my principal reason for considering that the application should be refused. 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 the UKBA 2007 apply.

Disposal

[49]For the reasons given, I conclude that the claim fails on issues two to five. There remains the question what if anything the court should do about the erroneous statement in the second sentence of paragraph 11.1 of PSO 4630. It is clear that PSO 4630 needs to be amended. By describing the issue of an IS 91 as a statutory bar rather than a ground for refusal as a matter of policy, it has led to confusion. Mr Kovats argued that the court should not make any declaration because the error has been acknowledged and the Home Secretary intends to amend the PSO. However, the Home Secretary’s representatives have been saying that for a considerable time and Mr Kovats was not able to give any indication that the Home Secretary intends to make such an amendment in the foreseeable future. It seems not to be a matter of any priority. I do not suggest that the court should automatically make a declaration of unlawfulness whenever a government policy document is found to contain an error of law. But in this case there is evidence that the error has caused mischief in the form of confusion and there are a large number of foreign prisoners who are affected. To decline to grant a declaration in these circumstances would be interpreted as a signal that the court does not regard the matter as of any real significance and a tacit condonation of the government leaving the matter on the back burner. This would not be satisfactory. I would therefore make a declaration that the relevant part of PSO 4630 is wrong in law.[50]I agree.

Cited in 5 later judgments