AA, R (on the application of) v Secretary of State for the Home Department

For the statutory bar on home detention curfew, a prisoner must both be liable to deportation and have been notified of a decision to make a deportation order. A stage 1 notice communicating liability to deportation is not sufficient. The deportation process remains two-stage: representations may be made after liability is notified but before the final deportation decision. The statutory deeming of deportation as conducive to the public good creates liability to deportation; it does not itself constitute a decision to deport. The withdrawal of appeal rights by the Immigration Act 2014 did not remove the opportunity to make representations before a deportation order is made.

The claimant, a prisoner at HMP Peterborough, challenged a decision treating her as ineligible for home detention curfew under the Criminal Justice Act 2003. A combined stage 1 letter notified her that she might be liable to deportation under the Immigration (European Economic Area) Regulations 2016 and purported to notify her of a decision to deport under the Immigration Act 1971 and the UK Borders Act 2007.

The Secretary of State later conceded that the letter did not constitute a decision to make a deportation order in the claimant’s circumstances, but maintained that the wider issue did not need to be decided because the claim was academic. The court rejected that preliminary application and considered whether a stage 1 notice, served before the claimant had an opportunity to make representations, could satisfy section 259(a) of the Criminal Justice Act 2003.

1. Preliminary issue. The claim was academic in practical terms, but it raised recurring questions of statutory construction affecting a time-sensitive home detention curfew scheme and potentially vulnerable prisoners. The court therefore declined to refuse to hear it, following the reasoning previously adopted in the proceedings.
2. Construction of section 259(a). The phrase “notified of a decision to make a deportation order” requires a final deportation decision to have been made and communicated. It is distinct from notification that a person is liable to deportation.
3. Two-stage process. Sections 3(5) and 3(5A) of the Immigration Act 1971 establish liability to deportation. The automatic deeming provisions in sections 32 and 33 of the UK Borders Act 2007 likewise create liability, subject to statutory exceptions, but do not themselves complete the deportation process. The Secretary of State must consider relevant representations before deciding whether to make the deportation order.
4. The one-stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002 supports that conclusion. Its purpose is to require continuing disclosure of grounds for remaining in the United Kingdom or opposing removal, so that the Secretary of State can make the final decision on all relevant material.
5. The Immigration Act 2014’s removal of specified appeal rights did not abolish the pre-decision opportunity to make representations or alter the statutory meaning of section 259(a). A stage 1 decision therefore did not render the claimant statutorily ineligible for home detention curfew.
6. Outcome. The claim was allowed. The stage 1 decision was not a decision to make a deportation order within section 259(a) of the Criminal Justice Act 2003.

The judgment describes earlier procedural decisions in the same judicial review:

• High Court, Administrative Court: DHCJ Brimelow KC held on 14 December 2023 that the otherwise academic claim should proceed in the public interest.
• High Court, Administrative Court: DHCJ Ford KC, in a judgment dated 14 November 2024, declined to revisit that decision and directed the claim towards determination of the remaining statutory-construction issue.
• High Court, Administrative Court: Mrs Justice Foster rejected the renewed application to treat the claim as academic and allowed the claim.