High Court ruling clarifies HDC eligibility for foreign national offenders facing deportation

Citation: [2023] EWHC 3215 (Admin)
Judgment on

Introduction

The High Court of Justice’s decision in the case of AA, R (on the application of) v Sodexo Ltd & Anor [2023] EWHC 3215 (Admin) examines the legal implications of an individual’s eligibility for Home Detention Curfew (HDC) in light of immigration status and deportation decisions. This decision addresses the interplay between the Criminal Justice Act 2003, the Immigration Act 1971, UK Borders Act 2007, and deportation proceedings, particularly in cases involving foreign nationals within the prison system. Key considerations include whether claims regarding eligibility for HDC become academic once deportation decisions are withdrawn and whether there are grounds of public interest warranting continuation of a seemingly academic claim.

Key Facts

The claimant, AA, a Portuguese national and mother to a baby, was serving a prison sentence but challenged the denial of HDC eligibility due to a decision to deport her. The Secretary of State for the Home Department (SSHD) initially determined AA was statutorily ineligible for HDC due to a served deportation decision. The prison, operated by Sodexo, refused to release her on HDC as well. Subsequent to legal proceedings, SSHD withdrew the deportation decision, prompting a debate on whether AA’s claim had become academic.

Several legal principles are at the forefront of this case:

  1. HDC Eligibility and Immigration Status: Section 246(1) of the Criminal Justice Act 2003 outlines the discretionary power to release prisoners on HDC, subject to conditions including immigration status and liability for removal or deportation as per sections 246(4)(f) and 259 of the CJA 2003.

  2. Two-Stage Deportation Process: The court examined the two-stage process involving a ‘stage 1 decision’ indicating liability to deportation and a subsequent ‘stage 2 decision’ encompassing the actual order to deport, primarily with reference to R (Mormoroc) v The Secretary of State for Justice and R (Serrano) v Secretary of State for Justice & Anor, although SSHD argued that post-Immigration Act 2014, stage 1 decisions are binding regarding deportation liability.

  3. Academic Claims: A claim is considered academic if it no longer directly affects the rights and obligations of the parties involved. Courts are cautious about hearing academic claims unless there is a public interest justification. This is reinforced by the principle established in Sun Life Assurance Co. of Canada v. Jervis and Lord Slynn’s dicta in R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450.

  4. Public Interest Exception: Despite a claim’s academic nature, it may proceed if exceptional circumstances prevail, such as a likelihood of recurring similar cases and a non-fact-sensitive nature of the decision, following the guidelines from R (Zoolife) v Secretary of State for the Environment, Food and Rural Affairs and Lord Slynn’s guidance in Salem.

Outcomes

Deputy Judge Kirsty Brimelow KC determined that despite withdrawal of the deportation decision, the case was not deemed academic, citing the public interest in clarifying the impact of combined stage 1 letters on HDC eligibility. The case raises concerns about potential inconsistencies affecting young and vulnerable foreign national offenders in the prison system.

The ruling implied that the SSHD’s confusion concerning whether certain letters constituted decisions that affected HDC eligibility merited further judicial review. Consequently, the claim against the SSHD was permitted to continue, although the claim against Sodexo was stayed due to the specificity of AA’s individual case, which may not satisfy the criteria for a general public interest concern.

Conclusion

The decision in AA v Sodexo Ltd & Anor provides significant insights into the legal framework governing the release of prisoners on HDC in the context of immigration and deportation proceedings. The court’s analysis emphasizes the need for clarity and consistency in implementing deportation decisions and stresses the importance of judicial review in maintaining lawful administration, especially for vulnerable individuals in the penal system. The case’s continuation reflects a judicial acknowledgment of the pressing need to resolve ambiguities affecting a substantial number of similar cases within the criminal justice system, thus reinforcing the public interest over procedural formality.