![[2024] UKUT 00336 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
Conclusions
Conclusion
We say at this stage we have considerable sympathy for Judge Anthony who was faced with an appeal in relation to which the guidance given to judges of the First-tier Tribunal has changed; from being that for offences committed before the specified date the EU law regime was still to be applied and for offences wholly committed after the specified date by reference to domestic law, with no reference to any provision of EU law, to a more nuanced approach. Judge Anthony was faced with a difficult task in light of such confusion and lack of guidance from the Upper Tribunal on the correct approach to be followed. We hope we have now provided that clarity.
We find Judge Anthony has erred in law in a manner material to the decision to allow the appeal, for the reasons set out in the Secretary of State’s grounds seeking permission to appeal, the grant of permission to appeal, and in light of our primary finding in relation to the approach to be taken in relation to the deportation of an EU national who has committed offences after the specified date.
We set the decision of the First-tier Tribunal aside.
We considered it appropriate and in the interests of justice to remit the appeal to the First-tier Tribunal to be linked to the existing Stage 2 appeal for all matters to be considered together.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
19 September 2024
ANNEX A
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
B E T W E E N:
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
- and –
KATARINA VARGOVA
Respondent
- and –
THE AIRE CENTRE
Intervenor
_________________________________________________________
NOTE ON HOME DETENTION CURFEW _________________________________________________________
This is an agreed note on the legal provisions filed following the direction at the hearing on 19 July 2024 by the President, Mr. Justice Dove, and Upper Tribunal Judge Hanson. In order to save a separate note on the material dates in relation to HDC, they are provided within this note.
The statutory provision for the discretionary early release scheme on home detention curfew is under Section 246 of the Criminal Justice Act 2003 (“Criminal Justice Act” or “CJA”). Subsection (4) of that provision sets out the exclusions from the scheme. The implementation of that power is set out in published policy described below, in a scheme known as Home Detention Curfew (“HDC”).
Chapter 6 of Part 12 of the CJA (ss237-268) governs the release of prisoners.
Section 246(1) provided that, subject to subsections (2) and (4) the Secretary of State “may release on licence under this section a fixed-term prisoner” “at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period.” (The section has since been amended so as to include exceptions from this provision for certain offences and to extend the relevant period to 180 days).
Section 246(4) states that:
“(4) Subsection (1) does not apply where—
…
(f) the prisoner is liable to removal from the United Kingdom.”
Section 259(a) provides as follows:
“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.”
…
This discretionary power is then addressed in a published policy Home Detention Curfew (HDC) Policy Framework (“Policy Framework”). Whether a person can be released on HDC is determined in the following steps which show that persons considered to be excluded by statute are not considered for HDC even under exceptional circumstances.
Is the prisoner “eligible” for HDC? A person is eligible if not excluded by statute. This is addressed in Section 4.3 (pp.10-15 Policy Framework). Section 4.3.1, p.10 lists those as “statutorily excluded” from HDC as including (9th bullet point) “those who are liable to deportation and a decision to deport has been served (i.e. not just those with a Deportation Order)”.
If the prisoner is eligible, then it is assessed whether the prisoner is “suitable” for HDC. Prisoners are “presumed unsuitable” in a variety of circumstances based on the nature of conviction and also on the basis of being “liable to deportation, but no deportation decision has been made” (Section 4.3.6, p.12, and Annex D p.32). (3) If the prisoner is eligible but not suitable, are there exceptional circumstances to warrant HDC release? (Annex D p.33)
There are ongoing judicial review proceedings in the Administrative Court 1 in which the issue is what constitutes a decision to make a deportation order for the purposes of s. 259(a) CJA and where it is contended that this is not applicable to “Stage 1” decisions.
The following are dates material to Ms Vargova’s application for HDC:
o Ms Vargova was served with a ‘Decision to deport pursuant to the Immigration Act 1971 and the UK Borders Act 2007’/’ICD/4936A’on 12 November 2022;
o Ms Vargova became eligible for HDC (subject to applicability of the legislation in her case) on 25 March 2023;
o Ms Vargova’s “Conditional Release Date” (“CRD”) was 6 August 2023. This is the date of automatic release from prison, but subject to compliance with licence conditions and thus considered conditional;
o Ms Vargova was detained under immigration powers from 6 August 2023, (notwithstanding the existence of this appeal) until she was granted immigration bail on 10 August 2023.
Enclosures:
Section 246 CJA, Section 259 CJA (versions applicable at the time of Ms Vargova’s eligibility for HDC until present).
Home Detention Curfew (HDC) Policy Framework (“Policy Framework”) of June 2024. The text of the identified provisions material to persons subject to decisions to deport is identical in the versions in force since 28 March 2019 to date.
Ms Vargova’s Release Slip (contains HDC and CRD dates).
Ms Vargova’s grant of immigration bail by the First-tier Tribunal (10 August 2023).
1 (R (AA) v Sodexo Ltd [2023] EWHC 3215 (Admin), addressing whether the claim was academic; current Court references are CO/1825/2023 / AC-2023-LON-001544 / 'A' v SSHD.
(Enclosures have not been attached)