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

A policy may take a foreign prisoner’s immigration status into account when deciding whether to release the prisoner on home detention curfew. The relevant distinction is between prisoners liable to removal and those who are not, rather than between British and foreign nationals. A prisoner notified of liability to automatic deportation, but not yet subject to a deportation decision, may be presumed unsuitable for release unless exceptional circumstances exist, provided the policy leaves room for individual consideration. Home detention curfew exists to manage resettlement in the community. It need not operate in the same way for a prisoner who may be detained or removed instead. The policy was not discriminatory under Article 14 of the Convention, Article 24 of the Citizenship Directive or section 13 of the Equality Act 2010.

The claimant, a Spanish national serving a two-year sentence, challenged the policy in PSI 52/2011 governing home detention curfew for foreign prisoners notified of possible deportation. No deportation decision had been made when he became eligible for consideration, and the policy presumed him unsuitable unless exceptional circumstances justified release. The Secretary of State later decided that he should be deported, subject to appeal.

The claimant alleged unlawful delay and discrimination contrary to Article 14 of the Convention, Article 24 of the Citizenship Directive and section 13 of the Equality Act 2010. He also relied on the unacceptable-risk-of-illegality principle. The central issues were whether the claim remained justiciable, whether delay caused any loss, and whether the policy was unlawful.

1. The claim was not academic. The court had granted permission to challenge the policy and should determine its lawfulness despite the later deportation decision.
2. The alleged delay between February and August 2012 was not shown to have caused the claimant to lose the opportunity for HDC. The challenge based on delay was therefore dismissed. Earlier decision-making might in any event have produced the same deportation decision.
3. Following R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, the statutory right to seek early release falls within the ambit of Article 5 for Article 14 purposes. The contrary observation in R (Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374 concerned Article 5(4), not discrimination under Article 14, and did not alter that conclusion.
4. The court treated R (Francis) v Secretary of State for Justice and Secretary of State for the Home Department [2011] EWHC 1271 (Admin) and [2012] EWCA Civ 1200 as establishing that immigration status is relevant to HDC; an IS 91 will generally justify refusing release because the prisoner cannot be released into the community for resettlement; and the resulting difference in treatment is not unlawful discrimination.
5. The relevant distinction was liability to removal, not nationality. HDC is discretionary and serves the specific purpose of managing resettlement. Paragraph 2.47 of PSI 52/2011 required immigration information and intention to deport to be taken into account, while allowing exceptional cases. It was therefore lawful and not discriminatory. The claim for judicial review was dismissed.

Not stated in the judgment. The decision was a first-instance judgment of the Administrative Court.