Lopes, R (On the Application Of) v Secretary of State for the Home Department & Anr

A foreign prisoner serving a life sentence after expiry of the minimum term may be subject to both extradition and deportation powers. An outstanding extradition request does not remove the power to make a deportation order, but a published policy may lawfully give extradition priority. The Tariff Expired Removal Scheme requires potentially eligible prisoners to be considered, but does not compel removal where removal cannot be effected or countervailing considerations apply. Continued detention is not arbitrary where the statutory scheme entrusts release to the Parole Board and an unchallenged decision shows that detention remains necessary for public protection. A prisoner who refuses available risk-reduction work cannot establish a Catch-22 by speculating about future release.

The appellant was serving a life sentence with a minimum term following his conviction for murder. Portugal had made an extradition request under the Extradition Act 1989. The appellant had also been notified of an intention to deport him to Guinea-Bissau and sought removal under the Tariff Expired Removal Scheme.

Freedman J refused applications for permission to apply for judicial review and for habeas corpus on the papers. Andrew Baker J refused renewed applications after an oral hearing. The appellant challenged the refusal to deport him, the failure to apply the removal scheme, and his continued detention after expiry of the tariff. The central issues were whether extradition proceedings prevented or postponed deportation and whether the detention was irrational, contrary to published policy, or incompatible with article 5.

1. Appeal dismissed. The refusal of permission to apply for judicial review and for a writ of habeas corpus was upheld.
2. The Secretary of State had both a power to order extradition under the Extradition Act 1989 and a power under section 32A(1) of the Crime (Sentences) Act 1997 to remove a life prisoner liable to removal after expiry of the minimum term. The appellant met the statutory criteria, and his deportation was deemed conducive to the public good. Extradition proceedings did not constitute a statutory bar to making a deportation order.
3. The published policies had to be construed sensibly and practically, applying Tesco Stores Limited v Dundee City Council [2012] UKSC 13; [2012] PTSR 983. The Tariff Expired Removal Scheme was mandatory only in requiring potentially eligible prisoners to be considered. It did not fetter the statutory discretion so as to require removal where removal was unavailable or countervailing considerations existed. The Immigration Directorate Instructions established a straightforward priority for extradition over deportation. Powerful public-policy reasons supported that priority, and it was not arguably irrational.
4. The reasoning of the House of Lords in R (James) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553 provided a powerful analogy. Public-law failings could not rewrite the statutory release scheme or permit judicial release contrary to it. The appellant’s detention was not arguably unlawful domestically in the absence of a challenge to the Parole Board’s recent refusal to direct release.
5. Domestic lawfulness was the starting point for the article 5 issue, but did not alone exclude arbitrariness. The necessary causal link between the sentence and continuing detention had not arguably been broken. The Parole Board had rationally and lawfully determined that detention remained necessary for public protection. The appellant had refused available risk-reduction work, and it was impermissible to speculate about the weight a future panel might give to the Portuguese allegations.
6. It was unnecessary to decide conclusively whether habeas corpus was available. The court observed that the reasoning in James and the decision in R v Secretary of State for the Home Department ex p Muboyayi [1992] 1 QB 224 indicated that it was not an appropriate route to release contrary to the statutory scheme.

1. Court of Appeal (Civil Division): On 27 May 2021, the court dismissed the appeal against the refusal of renewed applications for permission to apply for judicial review and for habeas corpus: [2021] EWCA Civ 805.
2. Court of Appeal: Dingemans LJ granted permission to appeal on 22 December 2020.
3. High Court: Andrew Baker J refused the renewed applications after an oral hearing on 17 September 2020.
4. High Court: Freedman J had refused the applications on the papers on 15 July 2020.