Christian, R (on the application of) v Secretary of State for the Home Department

The Early Removal Scheme conferred a discretionary power on the Secretary of State. It did not impose a duty to remove a foreign prisoner early, or to comply with the administrative timetable in a prison service order. The power had to be exercised lawfully, for its proper purpose and within a reasonable time, but the court would not convert administrative guidance into statutory requirements. The published scheme could create a legitimate expectation that a case would be considered during the statutory eligibility period. It did not, however, promise removal according to a fixed timetable or at the earliest possible date. A failure to process a case promptly did not itself make detention unlawful or breach article 5 where detention continued under the sentence imposed by a competent court.

The claimant, a foreign prisoner liable to deportation under section 3(6) of the Immigration Act 1971, sought judicial review of delay in processing his case under the Early Removal Scheme. The Prison Service referred his case to the Immigration and Nationality Directorate, but the referral was not actioned until judicial review proceedings had begun. He was ultimately deported one day before the statutory eligibility period expired.

He alleged unreasonable delay, unlawful detention and breach of article 5 of the European Convention on Human Rights. During the proceedings he also relied on legitimate expectation arising from the statutory scheme and PSO 6000. The central issues were whether the legislation required timely implementation according to the administrative timetable, and whether the published material created an enforceable expectation as to eligibility assessment or removal.

1. Claim dismissed. The Early Removal Scheme was permissive. Section 46A of the Criminal Justice Act 1991, as inserted by Schedule 20 to the Criminal Justice Act 2003, conferred a discretion on the Secretary of State to remove an eligible prisoner. It did not impose a duty to release or remove the prisoner at any particular time.
2. The discretion had to be exercised according to law, for the purpose for which it was conferred, and within a reasonable time. The statutory scheme defined the eligibility period but did not prescribe the assessment process or require compliance with PSO 6000. That order consisted of departmental instructions and best-practice guidance. It was not part of the statute and could not be used to add a legal timetable to the statutory power.
3. The claimant’s detention remained lawful. The statutory provisions expressly maintained liability to detention in pursuance of the sentence while the prisoner remained in the United Kingdom. Alem v The Secretary of State for Home Department [2006] EWHC Admin 899 supported that conclusion. R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19 was distinguishable because that case concerned detention after an entitlement to release had arisen.
4. The published material was capable of generating a legitimate expectation that a prisoner’s case would be considered during the statutory eligibility period. It did not amount to a clear and unambiguous promise that removal would occur under a fixed timetable or as soon as possible after eligibility. The provisions concerning delays acknowledged that cases might not be completed on time.
5. If an eligible prisoner’s case were not considered before the eligibility period expired, the court would have to consider whether frustration of the expectation was so unfair as to amount to a misuse of power, applying the approach in ex p Coughlan [2001] QB 213. That issue did not arise decisively because the claimant was removed within the period.
6. The admitted delay was regrettable, but it did not establish a legal requirement to follow a particular timetable or amount to unlawful delay requiring relief. A mandatory order could be available in an appropriate case where delay threatened removal within the statutory period.

First-instance judicial review proceedings. No earlier decision in the same proceedings is stated in the judgment.