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

A Home Detention Curfew policy may distinguish between prisoners according to their liability or eligibility for deportation. That distinction concerns immigration status and is nationality blind. It therefore does not constitute direct discrimination because of nationality under section 13 of the Equality Act 2010 or Article 14 of the European Convention on Human Rights.

A rebuttable presumption against release is justified where deportation is under consideration because Home Detention Curfew serves to manage resettlement into the United Kingdom community. Written notification of a decision restricting movement under Article 30 of Directive 2004/38/EC is not required before a prisoner may be treated as potentially removable for this purpose.

The appellant, a Romanian national serving a determinate sentence, was notified that his deportation was under consideration. The immigration authorities also indicated that they intended to detain him on release. Under paragraph 2.47 of Prison Service Instruction 52/2011, he was presumed unsuitable for release on Home Detention Curfew unless exceptional circumstances justified release.

A Deputy High Court Judge dismissed his claim for judicial review. The appellant contended that the policy discriminated because of nationality under the Equality Act 2010, the European Convention on Human Rights and Directive 2004/38/EC. He also alleged indirect discrimination and an unacceptable risk of unlawful decisions.

Although the appellant had subsequently been detained under immigration powers and deported, the Court of Appeal heard the appeal because the policy raised an issue of wider importance. The central issue was whether the difference in treatment arose from nationality or from liability to deportation.

1. The appeal was dismissed unanimously. The relevant comparator was a prisoner, whether British or foreign, who was not liable to deportation. The appellant was treated differently because the immigration authorities were pursuing deportation and intended to detain him on release. The distinction was therefore based on liability or eligibility for deportation, not nationality. It was nationality blind: per Flaux LJ at [58]–[61], with Gross and Lindblom LJJ agreeing.

2. The reasoning in R (Francis) v Secretary of State for Justice [2012] EWCA Civ 1200 was binding and correct. R (Serrano) v Secretary of State for Justice [2012] EWHC 3216 (Admin), whose facts were materially indistinguishable, had also been correctly decided. Those authorities established that the Home Detention Curfew distinction concerned immigration status and did not give rise to unlawful nationality discrimination.

3. Article 30 of Directive 2004/38/EC did not require the authorities to treat a prisoner as incapable of removal while deportation remained under consideration. Until a decision was made and notified, the prisoner could not actually be removed. That did not prevent potential removability from informing the separate decision whether Home Detention Curfew would serve its resettlement purpose.

4. Any indirect difference in treatment was justified. Home Detention Curfew promotes reintegration into the United Kingdom community, whereas a prisoner facing deportation may not require such resettlement. A policy was necessary for the interval between notification of potential liability and a final deportation decision. The policy was proportionate because its presumption could be displaced by exceptional circumstances.

5. The proposed alternatives were not less restrictive. A risk assessment would itself have to take account of the intended deportation and immigration detention. Earlier service of a deportation decision would make the prisoner statutorily ineligible under sections 246(4) and 259 of the Criminal Justice Act 2003, while any appeal would leave the ultimate prospect of deportation unresolved.

6. The allegation that the policy created an unacceptable risk of illegality depended upon establishing nationality discrimination. Since the policy did not discriminate on that ground, the allegation also failed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2017] EWCA Civ 989.
2. High Court, Administrative Court: His Honour Judge Cooke, sitting as a Deputy High Court Judge, dismissed the claim for judicial review by an order dated 11 September 2014. No neutral citation is stated in the judgment.