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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mormoroc, R (On the Application Of) v The Secretary of State for Justice [2017] EWCA Civ 989 (17 July 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/989.html Cite as: [2017] WLR(D) 495, [2017] EWCA Civ 989 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE COOKE
(Sitting as a Deputy High Court Judge)
CO/6310/2013
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LINDBLOM
and
LORD JUSTICE FLAUX
____________________
| R (on the application of MIHAI MORMOROC) |
Appellant |
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| - and - |
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| THE SECRETARY OF STATE FOR JUSTICE |
Respondent |
____________________
Andrew Deakin (instructed by Government Legal Department) for the Respondent
Hearing date: 14 June 2017
____________________
Crown Copyright ©
Lord Justice Flaux:
Introduction
The factual background
"For the purposes of this Chapter a person is liable to removal from the United Kingdom if—
(a) he is liable to deportation under section 3(5) of the Immigration Act 1971 (c.77) and has been notified of a decision to make a deportation order against him [...]"
"Unless UKBA has already confirmed the prisoner's immigration status, the prison should contact UKBA at the start of the HDC consideration process i.e. around 10 weeks prior to the HDC eligibility date) in order to establish the current position. The form at Annex D should be faxed/emailed directly to the CCD Caseworker if known or the Criminal Casework Directorate at [email protected]; fax 0208 760 8650; or the relevant Local Immigration Team contact point (details at Annex E) with a request for it to be completed and returned within 4 weeks." (Italicised in the original).
"The Home Office is considering the prisoner's case and is seeking deportation action against him. The prisoner has not produced any evidence to show ties in the United Kingdom, it is considered that if released he would not maintain contact with the relevant authorities, and as such the Home Office would oppose granting the prisoner HDC privileges."
"The Secretary of State has noted your conviction(s) on 18 April 2012 at Leicester Crown Court for Theft and takes a very serious view of your offence(s). In the light of your conviction, the Secretary of State is now considering your liability to deportation on grounds of public policy.
If you feel there are any reasons why you should not be deported to Romania on completion of your sentence, you should submit these in writing…within 20 working days of this notification...
If you do not reply in writing within this time, the UK Border Agency will decide the question of deportation on the basis of information known to us.
Completing the questionnaire below giving as much detail as possible and also submitting documentary evidence to support the statements you have made in the questionnaire will assist us in fully considering your case."
The legal framework and the relevant provisions of PS 52/2011
"32. Automatic deportation
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or Condition 2 applies
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
[...]
(4) For the purpose of section 3(5) (a) of the Immigration Act 1971 (c.77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."
"33. Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below)
[...]
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
[...]
(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties.
[...]
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4."
"In relation to those categories of prisoners outlined at 2.44a above – i.e. automatic (2007 UK Borders Act) and non-automatic (1971 Immigration Act) deportation cases – there needs to have been a decision to deport before the prisoner is made statutorily ineligible for HDC. Currently, the decision to deport is conveyed via an ICD 3805 and a deportation order (ICD 3813 or 3814) in automatic deportation cases and via an ICD1070 in non-automatic deportation cases." [Emphasis in the original]
"2.47 Where the prisoner has been notified of liability to deportation (currently notified via an ICD 350 or ICD 350 AD), but there has not been a decision to deport, the prisoner is not precluded from consideration for release on HDC. However, the fact that there is a current intention to deport on release, plus any additional information from UKBA, must be taken into account in considering suitability for HDC. Given the resettlement purpose of HDC, such prisoners should be presumed unsuitable to be considered for release on HDC unless there are exceptional circumstances justifying release. For example, where UKBA has confirmed that deportation is unlikely to be effected for the foreseeable future, and they do not intend to detain the prisoner on release from prison. Where there are exceptional circumstances, the prisoner may be risk assessed for release on HDC but it must be assumed at this stage that the prisoner will be deported at some point after release from prison. This factor should be taken into account, along with any other relevant information, when conducting the risk assessment, including the likelihood of compliance with HDC conditions. [Emphasis in the original]
2.48 An IS91 (authority to detain under immigration powers) does not, of itself, make a prisoner statutorily ineligible for release on HDC, but it does mean that the prisoner cannot be released into the community when it comes into force at the point the prisoner is released from the sentence. Therefore, the issuing of an IS91 serves to defeat the objective of release on HDC. A prisoner who has been issued with an IS91 should be advised that they are unsuitable for HDC because they cannot meet the criteria to be released into the community for resettlement purposes at present but that suitability for HDC will be re-assessed if the IS91 is withdrawn. UKBA will notify the prison immediately it has been decided to abandon deportation proceedings and/or withdraw the IS91, or if a decision to deport has been made."
"13. Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty."
"1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."
"1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them."
The judgment below
i) The policy under which the Appellant was refused HDC does not apply to all foreign nationals: it only applies to those who are liable to deportation under section 3(5) of the Immigration Act 1971, but on whom a deportation order has not yet been served. The distinction between those persons, and others to whom the policy does not apply (including foreign nationals who are not liable for deportation), is not one based on nationality. Rather, it is based on immigration status ([21]-[22] of the judgment).
ii) In R (Serrano) v Secretary of State for Justice [2012] EWHC 3216 (which it was accepted was materially identical to the facts of the present case) Males J had accepted that it had been authoritatively decided by the Court of Appeal in R (Francis) v Secretary of State for Justice [2012] EWCA Civ 1200 that any difference in treatment of foreign criminals notified of liability to deportation under paragraph 2.47 was based upon immigration status, not nationality ([23]-[29] and [40]-[42] of the judgment).
iii) Mr Southey QC had argued that, up to the point when the formal deportation order was served (20 May 2013), the appellant did not have a distinct immigration status and so could only have been considered for HDC as a foreign national. Any decision to refuse HDC was therefore based on his nationality, rather than any coherently identifiable immigration status as such, since he was not removable in accordance with EU law. The judge accepted that the appellant was only potentially liable for deportation at the time of the decision (since the Secretary of State had not yet made a decision as to whether an exception under section 33 of the 2007 Act might apply). However, the application of the policy (and consequent decision) was based on the risk that he was liable to deportation (a risk that it was to be assumed would eventuate). The judge also rejected a parallel argument, based upon Articles 24, 27 and 30 of the Citizenship Directive, that until a notice of removal had been served under Article 30 alerting the appellant to his right of appeal, he could not be removed so application to him of the policy of refusing HDC could only be based simply on his nationality. The judge observed that the same argument had also been rejected by Males J in Serrano ([31]-[34] of the judgment).
iv) Since the 'unacceptable risk of illegality' identified by the appellant by reference to R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin) was that of unlawful discrimination, this ground stood or fell with the others ([35] of the judgment).
v) Mr Southey QC advanced a similar argument by reference to Gillick v West Norfolk & Wisbech Area Health Authority [1986] 1 AC 112 (in which it was held that policies which contain an erroneous statement of law, so as to produce unlawful conduct on the part of the person applying the policy, are susceptible to a declaration that they are to that extent unlawful). He argued that the policy was unlawful because it would result in some people being refused HDC, even though they might later be found not to be removable because a section 33 exception applied. The judge held, as had Males J in Serrano, that it was necessary to have a policy which dealt with cases where there was potential for removal, but it was not yet established whether a deportation order could or should be made. The policy allowed for such cases by making it possible for such prisoners to show that there were "exceptional circumstances" for granting HDC, for example where there was a strong case for arguing that a section 33 exception applied to them ([38]-[39] of the judgment).
Grounds of appeal
(1) The difference in treatment complained of was based on nationality, not on the Appellant's immigration status (said to be his liability to deportation). As such, the policy was directly discriminatory under section 13 of the 2010 Act, since the difference in treatment was based on a protected characteristic, and no defence of justification could operate. In these circumstances, Art. 14 ECHR is also engaged, and weighty reasons would be required to justify the discrimination. Such weighty reasons did not exist here.
(2) The difference in treatment was also contrary to EU law, in that Article 24 of the Citizens Directive requires equal treatment as between UK nationals and EU nationals residing in the UK on the basis of the Directive, 'within the scope of the Treaty'. At the time of the decision to refuse HDC, the Appellant continued to enjoy his rights under Article 24, since no restriction on his right to free movement and residence in the UK (pursuant to Article 27) had yet been communicated in accordance with Article 30.
(3) The policy is itself unlawful, in that it will lead to unlawful acts, contrary to the principle in Gillick.
(4) Even if the difference in treatment was on the basis of immigration status, it was nevertheless indirectly discriminatory on grounds of nationality, in that it had a disproportionate effect on foreign nationals. Mr Southey QC contended that the test for justification under EU law is engaged, pursuant to which the question is whether there is a less restrictive alternative. He argued that in this case there were less restrictive alternatives to the presumption in favour of detention, namely to carry out a full risk assessment, alternatively to advance the date on which the deportation order was made.
Is the appeal academic?
The previous authorities
"15. I do not accept that serious offenders who are foreign nationals liable to summary removal are in the same position as serious offenders who are not. Their situations are not comparable and are not in an analogous situation. Removal or deportation is administrative action to which some foreign nationals are subject because of a combination of their immigration status and their offending. Indeed, the consequences of removal and prohibition on return might be regarded by some as at least as severe as continuing to serve a sentence in prison, but they are liable to such sanction for reasons to do with removability, and that does not amount to discrimination on the grounds of nationality, because they are precisely in different positions.
20. As the difference in the statutory regimes under section 246 and 260 make clear, the eligibility for early removal for the foreign nationals is their removability, the fact that they can be removed at all. There are a whole class of people who could not be removed. They include British citizens, Commonwealth nationals who have the right of abode under the Immigration Act 1971, Commonwealth nationals resident here before 1st January 1973, EEA nationals with residence rights under European Community law that may survive their offending, as well as any foreign nationals with very strong private family life or other reason to prevent their removal. They would not be removable. They would be in the same position as British citizens who, as a matter of domestic and international law, cannot be expelled from their own country. This represents a wide diversity of people from different citizenships and ethnic origins. There is really no indication to racial distinction made by using the criteria of removability, which is the criteria identified which by the statute. There is not even citizenship itself which is the entire basis for the distinction.
21. I therefore do not consider that this is a case where there are any grounds to believe that suspect grounds have been relied upon as the basis of distinction in treatment. In any event, in my judgment, there would have been abundant justification for this measure. The Secretary of State is entitled to conclude that it is in the public interest that serious offenders sentenced to determinate terms are not at liberty until they have served their minimum term. Removal of any foreign nationals who fall into this class and denial of home detention curfew to British nationals has the same substantive effect."
"30. The essential point, in my view, is that the position of, and statutory release arrangements for, prisoners who are liable to be removed from the United Kingdom are not analogous with those for prisoners who are not so liable to be removed. The different regimes are in place not because of differences in nationality, but because the first class of prisoner is liable to be removed and the second is not. The two situations are not comparable. Release on home detention is to be seen as a relaxation of a custodial sanction. Release for the purposes of removal is to enable a different sanction from imprisonment in this country to be brought into effect. Such prisoners are not released into the community."
"38. The HDC scheme permits the release of a prisoner during a limited period (up to 135 days) before the end of the 'requisite custodial period' for the specific purpose of managing more effectively the transition of the offender from custody back into the community. The issue of the IS 91 meant that the claimant could not then be released into the community. In that respect its practical effect was the same as the making of a deportation order. Nor can the decision be said to be contrary to the policy contained in PSO 4630, i.e. that HDC should normally be given to any eligible prisoner, because that involves a blinkered reading of the document. It clearly did not envisage granting HDC to a prisoner who could not be released into the community by reason of the existence of an IS 91, although it wrongly stated this to be a statutory bar."
"58…The claim, which was not advanced or foreshadowed at the time of the hearing, does not include any argument that section 246(4) (f) of the CJA 2003 itself contravenes articles 5 and 14 of the Convention. That is the critical provision which creates an exception from the HDC scheme in the case of a prisoner who is liable to removal from the United Kingdom. (The claimant's detention after 11 November 2009, when she became statutorily ineligible for HDC because of the Home Secretary's decision that she was liable to deportation, has always been accepted to have been lawful.) If a challenge had been made to the compatibility of section 246(4)(f) with the Convention, the Home Secretary would no doubt have argued that it was objectively justifiable and proportionate to exclude from the HDC scheme persons who are liable to deportation, having regard to the limited nature and purpose of the HDC scheme – i.e. to permit the release of a prisoner up to 135 days before the date on which they would otherwise have been released as a better way of managing their return from custody into the community. If the statutory exclusion of prisoners liable to deportation from the HDC scheme is compatible with the Convention (and the contrary has not been argued), I do not see how it can be argued that it nevertheless contravenes the Convention for the State to refuse HDC to a person whose detention has been authorised by the Home Secretary while considering whether the mandatory deportation provisions of section 32(5) of UKBA 2007 apply."
"40. The Divisional Court's reasoning as to delay is persuasive but, in any event, there is a clear justification in substance for the distinction between foreign and national prisoners. A scheme designed to promote resettlement into the UK community cannot be expected to apply on the same terms to those subject to notice of intention to make a deportation order. The case is very different from the denial of medical therapy in Rangelov.
41. The appellant was treated differently not because she was Jamaican but because of her immigration status. Neither race nor nationality are causally relevant. A scheme designed for reintegration into the community cannot be expected to operate in the same way for those liable to deportation.
42. The issue of different treatment as between national and foreign prisoners was considered in Brooke v Secretary of State for Justice […] and I agree with the approach. [He then cited [30] of the judgment of Sir Anthony May P]"
"63. In my judgment… Francis decides as follows:
(a) First, a prisoner's immigration status is relevant to whether he or she should be granted HDC. A prisoner who is going to be deported falls outside the scope of HDC, the purpose of which is to manage resettlement in the community.
(b) Second, and in the absence of any challenge to the statutory provisions themselves, once a decision has been made by the SSHD that a prisoner will be deported pursuant to the automatic deportation provisions of section 32 of the UK Borders Act 2007, the prisoner becomes statutorily ineligible for HDC. Despite the possibility that there may be a successful challenge to the SSHD's decision, there is then no obligation on the SSJ to consider the grant of HDC unless and until the SSHD's decision is in fact successfully challenged.
(c) Third, in a case where no decision has yet been made by the SSHD whether a prisoner who is subject to the automatic deportation provisions is entitled to rely on one of the exceptions in section 33, the Prison Service should seek information from UKBA as to the prisoner's immigration status and UKBA's proposals.
(d) Fourth, the SSJ, acting through the Prison Service, has a duty to consider HDC when no decision on deportation has yet been made. However, in a case where an IS 91 has been issued, it will in general be a lawful exercise of the SSJ's discretion to refuse release on HDC, having regard to the purpose for which such release exists.
(e) Fifth, exercise of the SSJ's discretion in accordance with these principles does not constitute unlawful discrimination contrary to Article 14 of the Convention in combination with Article 5…"
"64. In respect of the period until notification of the decision to deport dated 1 November 201[2], the present case can be distinguished from Francis on the facts in one respect, which is that whereas in Francis an IS 91 had in fact been issued, in the present case the SSHD had merely indicated that if necessary an IS 91 would be issued. I do not, however, regard this distinction as material. In both cases the relevant consideration for the exercise of the SSJ's discretion to release on HDC is whether the prisoner is likely to be a person whose resettlement into the community needs to be managed. If that is not the case when (as in Francis) an IS 91 has actually been issued, it is equally not the case when UKBA has made clear that if necessary an IS 91 will be issued.
65. Absent the arguments on unlawful discrimination, and in the absence of any challenge in this case to the statutory provisions, Francis therefore prevents any successful challenge to the refusal of HDC release in this case. In relation to discrimination, Mr Southey is compelled to submit that, as a decision on permission to amend which may not have been the subject of full argument, the decision in Francis is not binding. I do not accept this. The discrimination argument (that refusal of HDC to foreign prisoners in respect of whom no decision had yet been made constituted unlawful discrimination contrary to Article 14) was an argument of law not dependent on further factual findings and there is no reason to suppose that it was not fully developed in the course of what was, I note, a two day hearing before the Court of Appeal. The argument was dismissed by the Court of Appeal on its merits and not for merely procedural reasons.
66. Mr Southey submits also that Francis is distinguishable because it was not concerned with EU law, Miss Francis not being an EU national. That is true, but the issues were whether there was discrimination in the availability of HDC release on the ground of nationality and, if so, whether that could be justified. The answer to the first question does not depend at all on whether the discrimination complained of arose under EU law or the Convention.
67. In my judgment the reasoning of Pill LJ at [40] to [42] set out above constitutes a determination both (1) that difference in treatment regarding release on HDC based on liability to removal from the United Kingdom is not discrimination on the ground of nationality (see in particular [41] and the citation from Brooke at [42]) and (2) that in any event such difference in treatment, even if on the ground of nationality, is clearly justified and so is not a breach of Article 14 (see [40]). I consider that I am bound to follow this reasoning. However, even if that is not so, this is a considered decision with which both Lloyd LJ and Lewison LJ agreed, which is at least strongly persuasive and which I ought to follow."
"68. This is sufficient to defeat the claimant's challenge on Article 14 and, as indicated at [49] above, once it is found that there is no discrimination based on nationality for the purpose of that Article, the remaining arguments based on the Citizenship Directive and the Equality Act 2010 must fall away. Equally, the claimant's reliance on an unacceptable risk of illegality in accordance with the Medical Justice [2010] EWHC 1925 (Admin) principle cannot arise. If there is no discrimination on the ground of nationality, there is no risk of illegality and that is so regardless of a prisoner's individual merits on the issue of removability.
69. Mr Southey submits that the position is different under the Citizenship Directive because Article 30 requires that a decision to restrict freedom of movement under Article 27 must be notified in writing with full reasons. He submits that unless and until that is done, freedom of movement cannot be restricted and therefore the claimant, as an EU citizen, must be treated as someone who cannot be removed. I reject this submission. It is clear that, unless and until a decision is made and notified (which has now been done by means of the 1 November 2012 decision, subject to any successful appeal) the claimant cannot actually be removed, but Article 30 does not require the SSHD or the SSJ to treat the claimant for the purpose of considering HDC release as a person who cannot be removed when that question is still being considered and a decision has not yet been made."
The parties' submissions
"29. It is not in dispute that birth outside wedlock is a "status" for the purpose of article 14. It has been so regarded at the very least since the landmark case of Marckx v Belgium (1979) 2 EHRR 330. It is no co-incidence that the laws of both Scotland and England and Wales were changed within a few years of that decision. Nor can it be seriously disputed that there is here a difference in treatment between people who are otherwise in an analogous situation on the ground of that birth status: had the appellant's parents been married to one another he would automatically have become a British citizen and not been liable to deportation no matter how badly he had behaved.
30. As has been said many times, "For the purpose of article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, e.g., Inze v Austria (1988) 10 EHRR 394, para 41; Genovese v Malta, para 43). It is also clear that birth outside wedlock falls within the class of "suspect" grounds, where "very weighty reasons" are required to justify discrimination.
…
34. But in this case what needs to be justified is the current liability of the appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they would not be so liable had their parents been married to one another at any time after their birth. That is a present distinction which is based solely on the accident of birth outside wedlock, for which the appellant is not responsible, and no justification has been suggested for it. It is impossible to say that his claim that Exception 1 applies, based on article 14 read with article 8, is 'clearly unfounded'".
"A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP [provision, criterion or practice] and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot."
"27. Ms Rose QC, on behalf of the appellant, argues that this case is on all fours with the well-known case of R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] 1 AC 1155. Birmingham City Council maintained a system of selection for secondary school places but, for historical reasons, it had fewer places at selective schools for girls than for boys. This meant that the pass mark for girls in the entrance examinations was higher than for boys. This was treating the girls less favourably than the boys because of their sex […]
28. Mr Chamberlain QC, for the Secretary of State, raises a new argument before this Court. Not all women suffer the detriment complained of. Some are placed reasonably close to home. Therefore, there cannot be direct discrimination, because that requires exact correspondence between the disadvantaged class and the protected characteristic, as held by this Court in Patmalniece v Secretary of State for Work and Pensions (AIRE Centre intervening) [2011] UKSC 11; [2011] 1 WLR 783 and discussed at some length in Preddy v Bull (Liberty intervening) [2013] UKSC 73; [2013] 1 WLR 3741.
29. However, as Ms Rose correctly points out, the "exact correspondence" test is only relevant where the actual criterion used by the alleged discriminator is not a protected characteristic but something else. In Patmalniece it was not having the right to reside in the United Kingdom; in Preddy v Bull, it was not being married. The question is whether some other criterion is in reality a proxy for the protected characteristic. The best-known example is James v Eastleigh Borough Council [1990] 2 AC 751, where people who had reached the state retirement age were allowed free entry to the council's swimming pool. The differential state retirement ages for men and women meant that a 61-year-old woman got in free whereas her 61-year-old husband did not. This was held to be direct discrimination on grounds of sex. In this case, there is no doubt what the criterion is. It is sex, which is itself a protected characteristic.
30. Furthermore, it cannot be a requirement of direct discrimination that all the people who share a particular protected characteristic must suffer the less favourable treatment complained of. It is not necessary to show, for example, that an employer always discriminates against women: it is enough to show that he did so in this case. In the Birmingham case, some of the girls achieved a high enough pass mark to gain a place at a selective school. What all the girls suffered from was the risk that if they did not get a high enough mark, they would not get a place – just as, in the recent case of Essop v Home Office (Border Agency) [2017] UKSC 27; [2017] 1 WLR 1343, all the BME candidates suffered from the greater risk of failing the core skills assessment required for promotion, but of course some of them passed it. In the Birmingham case, some of the girls did of course achieve a high enough mark to get a place. But there were some who achieved a mark which would have been high enough had they been boys but was not high enough because they were girls. That is direct discrimination on grounds of sex.
31. I can see no valid distinction between the Birmingham case and this one. In this case, all the women who would be required to live in an AP when released on licence suffered the much greater risk than the men that they would be sent to an AP far from their homes and families. The fact that some of them would not suffer this detriment does not mean that those who do suffer it have not been discriminated against."
Analysis and conclusions
Lord Justice Gross
Lord Justice Lindblom
The section of the Form to be completed by UKBA provided as follows:
"To be completed by UKBA and faxed/emailed to Prison contact as above.
Foreign national prisoners who are liable to removal from the UK as defined by section 259 of the Criminal Justice Act 2003 are not eligible to be released on HDC.
By indicating yes or no, please confirm whether there has been:
| Yes | No | |
| (i) A decision to deport the prisoner | ||
| (ii) A decision to pursue deportation in cases where there is a court recommendation for deportation | ||
| (iii) A current notification to the prisoner of a decision to refuse leave to enter the UK or that they are an illegal entrant/immigration offender subject to removal under section 10 of the Immigration and Asylum Act 1999. |
If the answer to any part of question 1 is Yes then the prisoner will be ineligible for HDC.
If the answer to any part of question 1 is No, but deportation or removal action is still being considered, the prisoner will be presumed to be unsuitable for HDC unless there are exceptional circumstances justifying release. For example, where UKBA has confirmed that deportation is unlikely to be effected for the foreseeable future, and they do not intend to detain the prisoner on release from prison. Each case will be considered on its merits.
2. By indicating yes or no, please confirm whether:
| Yes | No | |
| UKBA is still considering deportation/removal action against this prisoner | ||
| UKBA has issued authority to detain (IS91) | ||
| UKBA intends to issue authority to detain (IS91) in the event that the prisoner is released from prison |
3. Please provide immediately below any other comments on the prisoner's suitability for release on HDC.
Relevant factors may include whether:
Removal from the UK is imminent or is unlikely in the foreseeable future
The prisoner has a history of failing to comply with immigration conditions or has previously absconded
The prisoner has a history of verbal/documentary deception to gain leave to enter/remain or evade removal from the UK
The prisoner has failed to produce evidence of their nationality or identity or is otherwise failing to comply with the directions of the UK Border Agency."
