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

The Court of Appeal dismissed the appellant's renewed applications for permission to apply for judicial review and for a writ of habeas corpus. The principal legal issues were the interaction between extradition under the Extradition Act 1989 (notably sections 7 and 12), the Secretary of State's discretion to deport under section 32A of the Crime (Sentences) Act 1997 (as inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012), and the scope of the Tariff Expired Removal Scheme (TERS) as reflected in the Prison Service Instruction and the Immigration Directorate Instructions (IDI).

The court held that (i) the Secretary of State legitimately prioritised extradition over deportation under the published policies (IDI and the TERS/PSI guidance) and that that policy preference was not irrational, (ii) the appellant was not eligible for immediate removal under the TERS while an extradition request remained outstanding, and (iii) the appellant's detention after expiry of his tariff was not unlawfully arbitrary for the purposes of article 5 ECHR because the Parole Board had recently and rationally refused to direct release and the statutory scheme vests the decision to release in the Parole Board.

Background and parties: The appellant is a Guinean‑Bissau national serving a life sentence in the United Kingdom with a minimum term. Portugal had issued an international arrest warrant and requested extradition in respect of alleged offences committed in 1999. The Secretary of State for the Home Department had given notice of an intention to make a deportation order and the appellant sought to invoke the Tariff Expired Removal Scheme (TERS) once his tariff had expired. He applied for judicial review of the alleged ongoing failure to deport him and for habeas corpus. Initial applications were refused on the papers. Permission to appeal to the Court of Appeal was granted by Dingemans LJ.

Nature of the claim and relief sought: The appellant sought (i) permission to apply for judicial review challenging the failure to deport him (including reliance on the TERS and on published policies), and (ii) a writ of habeas corpus contending that his continued detention after tariff expiry was arbitrary and contrary to article 5 ECHR.

Issues before the court:

• Whether the Secretary of State was irrational to decline to make a deportation order while extradition proceedings were outstanding and/or to decline to apply the TERS;
• Whether the Secretary of State had breached published policies (the IDI and the PSI/TERS guidance) in refusing to consider the appellant for TERS;
• Whether the appellant's detention after the expiry of his tariff was arbitrary or otherwise unlawful under domestic law or article 5 ECHR;
• Whether habeas corpus was an available and appropriate remedy in the circumstances.

Reasoning and conclusion: The court analysed the relevant statutory framework: sections 7 and 12 of the Extradition Act 1989, section 32 and section 33 of the UK Borders Act 2007, section 32A of the Crime (Sentences) Act 1997 (as inserted by the 2012 Act), the Immigration Act 1971 provisions on deportation, and the Parole Board regime under the 1997 Act. The court construed the published policies (IDI and the TERS/PSI guidance) pragmatically and concluded they sensibly place extradition ahead of deportation where an extradition request exists. The court found that the appellant was not eligible for immediate removal under TERS while an extradition request remained outstanding and that the Secretary of State’s preference for progressing extradition was not irrational. On article 5 the court accepted that compliance with domestic sentencing and parole provisions was not determinative in every case, but on the facts the necessary causal link between detention and the protective purpose of the life sentence remained because the Parole Board had lawfully and rationally refused release; the appellant had declined to engage with risk‑reduction work which the Parole Board relied upon. The court therefore dismissed the renewed applications. The court also observed (without deciding finally) that House of Lords authority (James) and Court of Appeal authority (Muboyayi/Cawley) strongly restrict the availability of habeas corpus as a route to secure release in such circumstances.

Appeal dismissed. The Court of Appeal held that the Secretary of State lawfully and rationally prioritised extradition over deportation under the published policies and statutory framework; the appellant was not eligible for removal under the TERS while an extradition request was outstanding; and the appellant's detention after tariff expiry was not arbitrary or otherwise unlawful because the Parole Board had lawfully and rationally refused to direct release and the statutory scheme confers release power on the Parole Board.

This is an appeal to the Court of Appeal from Andrew Baker J's refusal, after an oral hearing, on 17 September 2020 to grant renewed permission for judicial review and for habeas corpus. Freedman J had earlier refused the applications on the papers on 15 July 2020. Dingemans LJ granted permission to appeal on 22 December 2020. The Court of Appeal delivered judgment on 27 May 2021 ([2021] EWCA Civ 805).