Reported Case

The Administrative Court has dismissed our client’s judicial review challenge in Foley v SSHD, finding that the Secretary of State’s special policy on the deportation of Irish citizens is lawful and proportionate. Since 2007, the Secretary of State for the Home Department (SSHD) had chosen to adopt a policy that she shall not deport Irish nationals, save in exceptional circumstances.

In our client’s case, the Secretary of State had decided not to deport our client, despite him being a foreign national offender convicted of serious offences, with no ties to the community in the UK. The case is of overwhelming importance to our severely vulnerable client, who as a consequence, remains indefinitely in the UK and away from his family, in what is essentially a foreign country to him.


Background

In August 2010, our client received an indeterminate sentence of imprisonment for public protection (IPP) for an offence of robbery of and possession of an imitation firearm. On 4 April 2012, he was notified that the Secretary of State was considering whether he ought to be deported. Twelve days later, he was notified that no further action would be taken on this occasion.


Case Summary

On 7 January 2016, Duncan Lewis Solicitors wrote to the Secretary of State requesting a reconsideration of the decision not to deport our client. A letter was attached stating how our client did in fact meet the criteria for deportation and should be subject to the Tariff Expired Removal Scheme (TERS).

The Secretary of State wrote back stating that the decision not to deport the client had been reviewed and maintained and they noted that:

• The Home Secretary has decided the public interest is not generally served by enforcing the deportation of Irish nationals, except in the most exceptional circumstances.


• Irish nationality does not provide automatic exemption from deportation.

As a guide, deportation is still considered if an offence involves national security matters, or crimes that pose a serious risk to the safety of the public or a section of the public. For example, a person convicted and serving a custodial sentence of ten years or more for a terrorism offence, murder, or a serious sexual or violent offence.

Our client challenged the deportation refusal and was granted permission from the High Court on a number of grounds including; 1) fettering of the discretion to deport Irish prisoners by operation of a policy or practice of de facto blanket prohibition; 2) failure to exercise a true and genuine direction in the client’s case; 3) failure to apply the relevant policy; 4) breach of Art. 8 ECHR and/or Art. 7 of the European Union Charter of Fundamental Rights and; 5) breach of Art.14 ECHR and Art.21 of the Charter.


Outcome

The Honourable Mr Justice Supperstone gave individual consideration to each of the grounds and noted how they do not apply to the given case. On the first ground, the judge held that it does not follow from the fact that there have been zero deportations during a particular period, that there is a blanket ban in place, as the policy makes it clear that deportation will only be pursued exceptionally.

The judge also commented on the legal principles within the challenge and believed that they did not hold. For example, he noted that Art.8 is not engaged in the current context for the reason that “if the Secretary of State does not deport a person, there is no interference with his rights. He notes that “any interference with the Claimant's family and private life arises, not as a result of the decision of the Secretary of State, which is the subject of the challenge, but by virtue of the lawful sentence that was passed on the Claimant's conviction.”

Furthermore, the judge claims that Article 14 fails at the first hurdle, stating that the material difference is between foreign national offenders being deported and those who are not being deported. As such, it is believed that there is no difference in treatment on nationality grounds. The judge further added, that even if Article 14 is engaged in relation to the decision not to deport our client, that he agrees with the court in Doherty, that the special policy on the deportation of Irish citizens is “lawful and proportionate, and has an objective and reasonable justification.” The same principles were then applied in relation to Article 21 of the Charter, to which the judge arrived at the same conclusion.

Subsequently, we applied for permission to appeal the decision to the Court of Appeal.

We have since received a refusal of permission to appeal to the Court of Appeal. As such, we are presently trying to reach the client to potentially file an ECHR application with the European Court of Human Rights.

Whilst these conclusions are disappointing, the issues raised in this claim are of overwhelming importance to Irish national prisoners serving prison sentences without an automatic custodial release date in the UK.


Representation

The client was represented by Immigration and Public Law solicitor Sangeetha Vairavamoorthy. Counsel instructed in the matter are Philip Rule of No5 Barristers’ Chambers and Raza Halim of Garden Court Chambers.

 

Find full details of this case on Bailii’s website here.