Mormoroc, R (On the Application Of) v The Secretary of State for Justice

The appellant challenged paragraph 2.47 of Prison Service Instruction (PSI) 52/2011 which presumes foreign prisoners notified of liability to deportation as unsuitable for Home Detention Curfew (HDC) unless there are exceptional circumstances. The Court of Appeal held that the distinction in the PSI is based on immigration status (liability or eligibility for deportation under section 259 of the Criminal Justice Act 2003 and related provisions) and not on nationality, so it does not constitute direct discrimination under section 13 of the Equality Act 2010 or Article 14 ECHR. The court followed and applied the reasoning in R (Francis) v Secretary of State for Justice and R (Serrano) v Secretary of State for Justice, and rejected arguments based on the Citizenship Directive (Articles 24, 27 and 30) and the Gillick/unacceptable risk of illegality principle. The appeal was dismissed.

Background and procedural posture: The appellant, a Romanian national convicted and serving a determinate sentence, was notified (ICD 350) that the Secretary of State was considering deportation. He was refused consideration for HDC under paragraph 2.47 of PSI 52/2011 and sought judicial review of that policy. His claim was dismissed by His Honour Judge Cooke in the Administrative Court (order dated 11 September 2014). Permission to appeal to the Court of Appeal was granted and the appeal was heard on 14 June 2017.

Nature of the claim and relief sought: The appellant sought judicial review of the policy in paragraph 2.47 of PSI 52/2011 on grounds that it unlawfully discriminated against him on the basis of nationality (contrary to section 13 Equality Act 2010 and/or Article 14 ECHR) and/or contravened Articles 24, 27 and 30 of Directive 2004/38/EC (the Citizenship Directive). He also argued that the policy carried an unacceptable risk of illegality (relying on the Medical Justice principle) and that the policy was itself unlawful under Gillick-type reasoning.

Issues framed by the court:

• Whether the PSI distinction was a nationality-based difference in treatment (direct discrimination) or a distinction based on immigration status (liability to deportation).
• Whether the Citizenship Directive required treating an EU national who had not yet been notified under Article 30 as if removal were not possible for HDC purposes.
• Whether the policy created an unacceptable risk of illegality or was disproportionate because of less restrictive alternatives.

Court's reasoning and conclusions: The court accepted the Administrative Court's approach and relevant precedent (notably Francis and Serrano) and concluded the PSI distinction rests on liability/eligibility for deportation rather than nationality. That distinction is relevant to HDC's resettlement purpose because those liable to deportation will not be released into the community for reintegration. The Citizenship Directive argument was rejected: Article 30 notification does not require treating a person as non-removable during consideration of deportation. The suggested less restrictive alternatives (a fuller risk assessment or advancing the deportation decision) were not shown to be materially different or less restrictive in practice. The argument based on an unacceptable risk of illegality fell with the discrimination claims. The appeal was therefore dismissed.

Appeal dismissed. The Court held that paragraph 2.47 of PSI 52/2011 distinguishes prisoners by immigration status (liability or eligibility for deportation) not by nationality, and that distinction is relevant to the HDC scheme and not unlawful discrimination. Precedent in Francis and Serrano was followed and arguments based on the Citizenship Directive, Gillick/unacceptable risk of illegality and less restrictive alternatives were rejected.

Appeal from the Administrative Court (His Honour Judge Cooke sitting as a Deputy High Court Judge), Birmingham Civil Justice Centre, CO/6310/2013. First-instance decision dismissing the claimant's judicial review claim dated 11 September 2014. Permission to appeal was granted by Vos LJ. Appeal decided by the Court of Appeal (Gross LJ, Lindblom LJ and Flaux LJ) in [2017] EWCA Civ 989 on 17 July 2017.