Vasile Dragoi, R (on the application of) v Secretary of State for Justice

The discretion to remove a foreign national prisoner under section 260 of the Criminal Justice Act 2003 is not governed by a fixed list of factors. The decision-maker may refuse early removal where public safety or public confidence in the criminal justice system is materially engaged. A factor need not be considered merely because it is relevant or because a court might have considered it. It must be so obviously material that failure to consider it is irrational or inconsistent with the statutory purpose. The statutory scheme does not require a formal risk assessment. A prisoner sentenced to a fixed term remains lawfully detained throughout that term unless release or removal is directed. A public law error in refusing early removal does not, without more, make detention unlawful or arbitrary under Article 5 of the ECHR.

The claimant, a Romanian national serving concurrent sentences for human trafficking and conspiracy to convert criminal property, sought judicial review of the Secretary of State’s refusal to remove him to Romania under the Early Removal Scheme. The refusal relied on risks to the safety of vulnerable victims living in the claimant’s home town and the possible erosion of public confidence in the criminal justice system.

The claimant alleged failure to consider relevant matters, irrationality and unlawful detention, including breach of Article 5 of the ECHR. The court considered whether the decision-maker had to take account of the claimant’s sons’ earlier removal, his serious health problems, a slavery and trafficking prevention order, the absence of a formal risk assessment, and the position on eventual release.

1. Judicial review claim dismissed. The decision to refuse removal under the ERS was lawful.
2. Section 260 of the Criminal Justice Act 2003 confers a discretion and creates no entitlement to removal on the eligibility date. The overarching purpose is removal of foreign offenders, but that interest must be balanced against competing public interests, including public safety and public confidence in the criminal justice system.
3. There is no fixed statutory list of relevant considerations. Applying the principles in R (Khatun) v Newham London Borough Council and In Re Findlay, a factor is mandatory only where it is so obviously material that failure to consider it would be irrational or contrary to the statutory intention. The claimant’s sons’ earlier removal was considered, and the different treatment had a rational explanation because the police had not alerted the authorities before the sons were removed.
4. The claimant’s serious health problems and the slavery and trafficking prevention order were potentially relevant, but neither was so obviously material that the decision-maker was required to consider it. The practical difficulty of enforcing the order in Romania meant that its existence did not eliminate the risk to victims.
5. Neither section 260 nor PSI 04/2013 requires a formal risk assessment. The claimant’s past conduct, his leading role, the vulnerability of the victims and evidence that they feared reprisals provided a rational basis for concluding that removal posed a real risk to their safety. The possibility of eventual release did not make the risk irrelevant to the ERS decision.
6. The assessment of public confidence was necessarily speculative, but it was rational to conclude that early removal might undermine victims’ and the wider public’s confidence and discourage future victims from giving evidence.
7. The unlawful-detention claim also failed. A sentenced prisoner remains detained under the authority of the sentence. A breach of public law duties does not itself create a claim for damages for unlawful detention. Article 5 does not guarantee early release, and no sufficient basis for arbitrariness was established.

First-instance judicial review proceedings. The claim challenged the Secretary of State’s decision dated 26 May 2023. The judgment records that an earlier judicial review concerning the 8 March 2023 decision was dismissed after that decision was withdrawn, save for a damages issue concerning alleged unlawful detention.