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

A prisoner who is liable to removal from the United Kingdom is statutorily excluded from Home Detention Curfew under Criminal Justice Act 2003, section 246(4)(f). The issue of an immigration detention authority does not itself create that statutory bar. It may nevertheless provide a proper policy reason for refusing release where the prisoner cannot in practice be released into the community. An unlawful refusal of early release does not invalidate the custodial sentence or make continued detention false imprisonment or a breach of article 5. A policy document misstating the statutory position may be declared unlawful where it has caused practical confusion.

The claimant, a Jamaican national serving a determinate prison sentence, sought judicial review after she was not released on Home Detention Curfew. An IS 91 had been issued while the Secretary of State considered whether the mandatory deportation provisions applied. The prison initially treated the IS 91 as a statutory bar, although the claimant did not become statutorily liable to removal until a decision to make a deportation order was notified.

The claimant challenged the relevant guidance, the refusal of release, her continued detention, and alleged breaches of articles 5, 8 and 14. She also sought permission to amend her claim to plead false imprisonment and discrimination.

1. Guidance. Under section 246(4)(f) of the Criminal Justice Act 2003, a prisoner is excluded from Home Detention Curfew when liable to removal. Under section 259, that status arises where the person is liable to deportation under section 3(5)(a) of the Immigration Act 1971 and has been notified of a decision to make a deportation order. An IS 91 issued under section 36 of the UK Borders Act 2007 while deportation is being considered does not itself create the statutory bar.
2. The second sentence of paragraph 11.1 of PSO 4630 was therefore wrong in law. The IS 91 could nevertheless be treated as a policy ground for refusing HDC because the claimant could not then be released into the community. The refusal was not irrational and did not conflict with the properly understood policy.
3. Even if the refusal had been an unlawful exercise of discretion, the claimant remained detained pursuant to a lawful sentence and the requisite custodial period. The refusal did not invalidate the sentence or create false imprisonment, and article 5.1 expressly permits lawful detention after conviction. The principles in R (Noorkoiv) v Home Secretary and R (James) v Home Secretary supported that conclusion.
4. Article 8 did not provide a separate claim for interference which went no further than the inevitable consequences of lawful detention.
5. Permission to amend to plead an article 14 claim was refused. The proposed claim was out of time and did not challenge the critical statutory exclusion in section 246(4)(f). The reasoning in R (Clift and Others) v Home Secretary did not resolve that unargued issue.
6. The claim failed on issues two to five. A declaration was made that the relevant part of PSO 4630 was wrong in law, because the error had caused confusion and affected a significant number of foreign prisoners.