Corbiere Ltd & Ors, R (On the Application Of) v Secretary Of State For Justice & Ors

A victim’s request that an offender be recalled to custody is reviewable only on conventional public-law grounds; there is no general duty to initiate recall where the alleged conduct does not breach licence conditions or recall is unnecessary. Corporate victims outside the statutory victim scheme have no entitlement to disclosure of an offender’s future licence terms. Under the UK Borders Act 2007, the Secretary of State has a discretion as to timing, but that discretion is principally directed to practical case-management considerations and does not generally justify delaying deportation for months or years to protect private interests. The public interest in deporting a serious foreign criminal may outweigh risks to commercial property and civil proceedings. Section 17 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 does not permit passport retention merely to prevent voluntary departure.

The claimants, companies engaged in quantitative investment research, challenged decisions concerning the recall, licence conditions, deportation and passport of Mr Xu, a Chinese national and former employee. Mr Xu had been convicted of fraud involving confidential investment strategies, convicted of two breaches of a Serious Crime Prevention Order, and sentenced to imprisonment followed by a licence period.

The claimants opposed his deportation because they feared further misuse of confidential information and difficulties in pending civil proceedings. They relied on their property rights under Article 1 of Protocol 1 to the Convention and fair-trial rights under Article 6. The court also considered whether the defendants had acted unlawfully in refusing to initiate recall, disclose future licence conditions or retain Mr Xu’s passport.

1. Recall. The principles identified in R (Calder) v Secretary of State for Justice [2015] EWCA Civ 1050 and R (Jorgenson) v Secretary of State for Justice [2011] EWHC 977 (Admin) require reasonable grounds for a licence breach and necessity for recall. A breach does not automatically require recall. The alleged SCPO breaches pre-dated the licence, and conduct during the criminal trial did not make recall necessary. The refusal to initiate the process was not irrational. Alternatively, applying section 31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same.
2. Licence-condition disclosure. Section 35 of the Domestic Violence, Crime and Victims Act 2004 confers specified rights on statutory victims. The claimants were not statutory or discretionary victims and had no entitlement to the terms of any future licence. A previous mistaken disclosure did not require repetition, as explained by R v Secretary of State for Defence ex parte Wilkins (CO/4676/2000). The challenge was also premature.
3. Deportation. Sections 32 to 34 of the UK Borders Act 2007 establish a powerful public interest in the prompt deportation of serious foreign criminals. The discretion as to timing permits practical case management, but does not confer a power to postpone deportation for months or years to preserve licence supervision, an SCPO or private civil remedies. The Secretary of State properly balanced the wider public interest, including deterrence and public confidence, against the claimants’ commercial interests.
4. Convention rights. Article 1 of Protocol 1 was engaged, but the interference was proportionate. The risk of commercial harm was uncertain and unquantifiable, while the public interest in deportation was compelling. Article 6 did not require the SSHD to prevent departure; any issue concerning participation in or enforcement of the civil proceedings was properly raised in those proceedings.
5. Passport. Section 17 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 permits retention only where the person may be liable to removal and retention may facilitate removal. It could not lawfully be used to prevent voluntary departure. Any restriction on travel required another legal measure, such as an order in the civil proceedings. Permission was refused on the Article 6 ground, permission was granted on the other grounds, and the claim was dismissed.

First-instance judicial review. The claim was dismissed by the High Court (Administrative Court).