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

The claimant, a Spanish national and a "foreign criminal" serving a two year sentence, challenged the lawfulness of paragraph 2.47 of Prison Service Instruction 52/2011 which presumes that prisoners who have been notified of liability to deportation but for whom no decision to deport has yet been made are unsuitable for release on home detention curfew unless there are exceptional circumstances. The principal legal issues were whether that policy discriminated on the ground of nationality (contrary to Article 14 ECHR read with Article 5, Article 24 of Directive 2004/38/EC, and section 13 of the Equality Act 2010) and whether delay by the Secretary of State for the Home Department in deciding deportation rendered the claim non-academic or otherwise actionable.

The court held that the claim was not academic and that the claimant's delay complaint failed because there was no proven causative effect of any earlier delay. On the principal discrimination challenge the court followed and applied the reasoning in R (Francis) v SSJ & SSHD: the distinction relevant to HDC is between those who are liable to removal and those who are not, and a policy which treats prisoners differently by reference to immigration status and the resettlement purpose of HDC is not unlawful discrimination on the ground of nationality. Consequently the challenge to PSI 52/2011 was dismissed.

Background and parties. The claimant, Antonio Serrano, a Spanish national convicted and sentenced to two years' imprisonment, sought judicial review of the Prison Service Instruction 52/2011 policy (paragraph 2.47) under which a prisoner notified of liability to deportation but without a decision to deport is presumed unsuitable for home detention curfew unless exceptional circumstances exist. The defendants were the Secretary of State for Justice and the Secretary of State for the Home Department. Permission to apply for judicial review was granted on paper by James Dingemans QC on 31 August 2012.

Nature of the application and relief sought. The claimant sought a declaration that the policy in PSI 52/2011 unlawfully discriminated against foreign-national prisoners and thereby a remedy in judicial review (the judgment notes that a claim for damages could not succeed if the refusal was lawful).

Key factual posture and procedural history. The claimant became eligible for HDC on 3 September 2012. UK Border Agency notified consideration of deportation in February 2012 and indicated it intended to detain the claimant on release; no formal decision to deport was taken until 1 November 2012. The claimant issued judicial review proceedings on 2 August 2012 and the hearing in this court took place on 6 November 2012.

Issues framed by the court.

• Whether the claim was academic in light of the SSHD's 1 November 2012 decision to deport.
• Whether there was unlawful delay by the SSHD in making the deportation decision.
• Whether PSI 52/2011 paragraph 2.47 unlawfully discriminated on the ground of nationality, contrary to Article 14 ECHR (read with Article 5), Article 24 of the Citizenship Directive (Directive 2004/38/EC), section 13 of the Equality Act 2010, or gave rise to an unacceptable risk of illegality (Medical Justice principle).

Court's reasoning and conclusions.

• The court declined to treat the proceedings as academic and proceeded to decide the merits because permission had been granted and a legal test of policy lawfulness remained to be determined.
• On delay, the court found that any delay between February and August 2012 was not proved to have caused the absence of a deportation decision by the HDC eligibility date and dismissed the delay challenge.
• On discrimination, the court concluded that the policy must be assessed in the statutory and policy context, notably the Criminal Justice Act 2003 (section 246 and section 259) and the UK Borders Act 2007 (sections 32, 33 and 36). The court applied the reasoning in R (Francis) v SSJ & SSHD and related authorities (including R (Clift) v SSHD) and held that the relevant distinction for HDC is between prisoners who are liable to removal and those who are not; the differential treatment based on immigration status and the resettlement purpose of HDC is not unlawful discrimination on the ground of nationality. Article 24 of the Citizenship Directive and the Equality Act argument therefore failed, and there was no unacceptable risk of illegality under Medical Justice.
• Accordingly the judicial review claim was dismissed.

Contextual note. The judgment recognises that the statutory automatic deportation regime (UK Borders Act 2007) may mean some foreign nationals cannot be removed in practice, but emphasises that the present challenge addressed only the Prison Service policy and not the primary legislation.

The claim for judicial review is dismissed. The court rejected that the claim was academic and rejected the complaint of unlawful delay. Applying the statutory context (notably s.246 and s.259 of the Criminal Justice Act 2003 and ss.32, 33 and 36 of the UK Borders Act 2007) and the reasoning in R (Francis) v SSJ & SSHD, the court held that paragraph 2.47 of PSI 52/2011, which presumes unsuitability for HDC where liability to deportation has been notified but no decision has been taken, is not unlawful discrimination on the ground of nationality and is a lawful policy for addressing the resettlement purpose of HDC.