Rozo-Hermida, R (on the application of) v Secretary of State for the Home Department

A former foreign national prisoner detained pending deportation must be assessed individually when deciding whether detention should continue in a prison or transfer to an immigration removal centre. A blanket ban on transferring registered sex offenders is unlawful because it prevents the required assessment. The assessment must distinguish the risk posed if the detainee is released from the risk posed while detained in an immigration removal centre. Good behaviour in custody is ordinarily a significant factor in favour of transfer, although it need not be decisive. Indefinite registration as a sex offender is automatic following a sufficiently long sentence and does not establish that the sentencing judge considered the offender a permanent risk.

The claimant, a Colombian national, had completed the custodial part of an eight-year sentence for rape and remained detained pending deportation. He challenged the Secretary of State’s refusal to transfer him from prison to an immigration removal centre.

The refusal relied on policies concerning foreign national prisoners, serious sexual offences, risk, and the claimant’s conduct and offending history. Subsequent reviews applied notices which operated as a blanket prohibition on transferring registered sex offenders. The central issue was whether the claimant’s detention in prison had been assessed lawfully under Article 5 of the ECHR and domestic public law.

1. Outcome. The decision of 12 August 2010 and its continuation on review were quashed. The Secretary of State was directed to reconsider the claimant’s detention in accordance with the October 2010 policy and the guidance in the judgment.
2. Article 5 requires a relationship between the ground of permitted deprivation of liberty and the place and conditions of detention. The principle derived from Ashingdane v United Kingdom (1985) 7 EHRR 528 and reaffirmed in Aerts v Belgium (2000) 29 EHRR 50 applies in immigration cases, including Mayeka v Belgium [2007] 1 FLR 1726.
3. The policy required an individual risk assessment at the outset and at regular intervals. The seriousness of the offence may make prison detention more likely, but a blanket ban on transferring a category of offender is inconsistent with individual assessment and is irrational and unlawful.
4. The assessment must distinguish the risk posed by a former offender if released from the risk posed while detained in an immigration removal centre. Risks arising from access to mobile phones or the internet may justify continued prison detention in appropriate cases, but those considerations did not apply on the facts here.
5. The original decision was flawed because it treated good behaviour during four years in custody as supporting continued detention in prison. That behaviour was at least a significant factor in favour of transfer. It was also wrong to infer from indefinite sex-offender registration that the sentencing judge had found the claimant to be a permanent risk to women. Registration was automatic and was not part of the sentence.
6. The later reviews were unlawful because they proceeded on the basis that no registered sex offender could be transferred to an immigration removal centre. Reconsideration was required within 28 days of judgment, or within 21 days of promulgation of the Tribunal’s decision if later.

The claim for judicial review was commenced in the Administrative Court on 21 July 2010. The judgment describes pending Tribunal proceedings against the notice of intention to deport, but no earlier judicial decision in the same claim is identified.