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

Mrs Justice Foster : Introduction

1. This claim for judicial review concerned at its outset the Claimant’s eligibility for early release on Home Detention Curfew (“HDC”). The Claimant, following a grant of anonymity is also referred to here as “AA”.

2. At the time of her application for permission for judicial review on 19 May 2023 the Claimant was a prisoner at HMP Peterborough (“the Prison”), a prison operated by Sodexo Limited (“Sodexo”). The claim was issued to challenge a decision of the First Defendant Secretary of State for the Home Department (“SSHD”) dated 5 January 2023 (“The Challenged Decision”) communicated on 24 January 2023.

3. In brief, there are certain conditions that may render a person in the position of AA at the material time, ineligible for HDC. One of those disqualifying conditions is that a decision to make a Deportation Order has been made in respect of them. The meaning of the phrase “decision to make a Deportation Order” was central to the issue between the parties.

4. The Challenged Decision was in the form of what the SSHD called a “Combined Stage 1” letter. The letter stated it was both a Notice that AA may be liable to deportation under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) and also a Decision to Deport pursuant to the Immigration Act 1971 and the UK Borders Act 2007 . The Challenged Decision also contained a passage which, under the heading “Current Immigration Status” stated the SSHD was satisfied that AA was lawfully resident in the UK or had permanent rights of residence under the EEA Regulations and a pending, in time, application under the EU Settled Status Scheme. This scheme, pursuant to the UK’s departure from the EU departure from EU, allowed EEA nationals, before the end of the transition period, to regularise their immigration status in the UK.

5. As a consequence of the Challenged Decision the Prison Director purported to treat AA asas ineligible under statute for Home Detention Curfew a form of release on licence, on the basis that she had, by being served with the Challenged Decision, been served with (among other notifications) a decision to make a Deportation Order for the purposes of s. 259 of the Criminal Justice Act 2003 (“ the 2003 Act ”) and so was within one of the statutory categories of exception to HDC entitlement.

6. Appended to the Challenged Decision was a “Deportation - One Stop Notice” stated to be given under section 120 of the Nationality, Immigration and Asylum Act 2002 as amended and as applied by the EEA Regulations, requiring her to give reasons why she should not be deported. It referred to her rights under the EEA Regulations, as did the Challenged Decision.

7. The Claimant argues that the description on the face of the Challenged Decision as a decision to make a Deportation Order was wrong; the SSHD’s characterisation of it as such is also wrong, and that the SSHD’s operation of the process of deportation decision-making is shown, by this case, to be founded on error.

8. An issue arises as to whether or not this Court ought to consider these matters at all. Repeated applications have been made by the SSHD to stay a particular issue which, in spite of concession on other matters by the SSHD, the Claimant argues ought nonetheless to be heard by the Court. This point of disagreement was treated before me as a preliminary issue.

9. As appears below, I have decided that preliminary issue adversely to the SSHD, and have gone on to consider the substance of the Claimant’s case.

10. I turn first to the essential background. Relevant Chronology

11. The hearing before me is preceded by a long history, some parts of which will be referred to below. After an expedited hearing on 15 June 2023 DHCJ Vikram Sachdeva KC, following amendment of the Statement of Facts and Grounds and the Summary Grounds of Defence, gave permission for judicial review on 27 June 2023.

12. The facts include that the Claimant (who was born in 2003), came to this country to join her mother in 2012. She was 17 at the time of the relevant offending which took place between 1 and 22 September 2020. Following her arrest, she left home, becoming pregnant shortly thereafter. Given the circumstances of the offending, she was referred to the National Referral Mechanism on 12 November 2020. A positive Conclusive Grounds decision was made by the Single Competent Authority on 20 May 2022 recognising the Claimant as a victim of modern slavery within the meaning of the Modern Slavery Act 2015 .

13. On 25 December 2020, thus before the UK left the EU, AA had applied to the EU Settlement Scheme (‘EUSS’).

14. There have been a number of occasions on which the SSHD has argued that the challenge ought not to be heard because it was academic, which submissions have on each occasion been rejected, including after a day’s hearing in August 2023 by DHCJ Kirsty Brimelow KC in a reasoned judgment of 14 December 2023, in which she held that whilst academic, the issues before the Court were of public importance and should be the subject of a decision of the court. That decision was not appealed.

15. Much of the early chronology relevant to the hearing before me was set out in DHCJ Brimelow KC’s judgment thus: “15. On 5 January 2023, AA was served with a notice which informed her of her liability to deportation pursuant to the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016). This is a ICD. 4932 EEA or Stage 1 deportation decision. AA was also served with a “One Stop Notice” requiring her to give reasons why she should not be deported within 20 days.

16. The heading of the ICD.4932 EEA has two headings in large capital letters: NOTICE THAT YOU MAY BE LIABLE TO DEPORTATION PURSUANT TO THE IMMIGRATION (EUROPEAN ECONOMIC AREA) REGULATIONS 2016 AS SAVED (EEA REGULATIONS 2016) DECISION TO DEPORT PURSUANT TO THE IMMIGRATION ACT 1971 AND THE UK BORDERS ACT 2007.

17. The letter is described by the SSHD as a combined stage 1 letter which is issued where it is not clear whether the person is a relevant person pursuant to the Conducive Deportation Guidance. A relevant person includes a person to whom the EEA Regulations 2016 Immigration apply. This relates to whether the person has a right of permanent residence under the EEA Regulations 2016 or were exercising Treaty rights in the UK before 23.00 GMT on 31 December 2020 and have made an in-time application for EUSS leave which has not been determined or appeal rights have not been exhausted.

18. On 24 January 2023, AA signed a disclaimer indicating her intention to leave the UK voluntarily and waiving her right to make representations against deportation. She had had no legal advice and had been detained after sentencing by the Crown Court and then separated from her baby due to commencing her period of detention at HMP Low Newton, a Young Offenders’ Institution for women, which does not have a Mother and Baby Unit. On 14 February 2023, AA was transferred to the Prison, and she was reunited with C [her child] in the Mother and Baby Unit.

19. On 21 February 2023 all the papers were re-served. The ICD. 4932 noted: “re- served all papers as subject stated not previously served and did not know about possible deportation.”

16. The ICD 4932 EEA notice (or “The Challenged Decision”) thus stated it was (i) a letter telling AA she may be liable to deportation under the retained EEA provisions, (ii) a Decision to Deport under the Immigration Act 1971 and (iii) a decision to deport under the UK Borders Act 2007 which contains the what are known as “automatic” deportation provisions.

17. On 27 February 2023 the Prison had notified AA that she was “ eligible by law ” for HDC but “ presumed unsuitable for the scheme because your immigration status is not clear ”. By its Amended Defence dated 21 June 2023 this was admitted to be wrong by the Prison. The relevant forms had not been sent at that time to assist in determining eligibility. The date of AA’s eligibility for release on HDC, pursuant to s.243 of the CJA 2003 , would have been 10 April 2023. The Claimant in her skeleton argument emphasises release at this time would have allowed her and her infant child to begin supported rehabilitation in the community.

18. After representations on behalf of the Claimant, the SSHD’s Foreign National Offender-Returns Command team had on 13 April 2023, completed an “HDC-FNP” form and ticked “YES” to the question on the form asking whether there had been a Decision to Deport. The HDC-FNP form sets out that where the SSHD answers “YES”, then the prisoner will be ineligible for HDC. By reference to the “YES” box tick, the Claimant was treated as ineligible for HDC.

19. The communication of 13 April 2023 however also included an apparently inconsistent statement as follows, with emphasis added: “Immigration Enforcement is still considering deportation/removal action against her. She has been served with a stage 1 decision confirming she is liable to deportation. Her representatives have requested a six-week extension to provide evidence of her residence in the UK, this was agreed by Immigration Enforcement . So, the reason to refuse the HDC remains correct, as the stage 1 decision simply made her liable to deportation, but it is not decided until the stage 2 decision is served so her immigration status is uncertain”

20. In other words, it said that the Notice that had been given to AA was a notice that she was liable to deportation only; it did not constitute notification of a Decision to Deport.

21. The SSHD stated in paragraph 21 of her Amended Summary Grounds of Defence that this passage was also in error, saying the text highlighted in bold is incorrect. She relied on the “YES” in the box on the form saying there had been a decision to Deport, and that it was contained in the Challenged Decision of 5 January 2023.

22. AA argued that the passage referred to above on the form was plainly correct , as there remains a two-stage deportation process, and only when the second stage is concluded has there been a “ decision to make a deportation order ” for the purposes of s. 259 (a) CJA 2003 .

23. The SSHD disagreed that this was the correct analysis, or that this was an issue to be tried.

24. Permission for judicial review was granted on 27 June 2023.

25. Two days later on 29 June 2023, the SSHD made what she called a “Stage 2 Deportation Decision” under the EEA Regulations 2016 following on from the notice dated 21 February 2023. On the same date enclosed with that letter was a refusal of AA’s application under EU Settled Status provisions. AA lodged appeals against both decisions.

26. The SSHD wrote on 5 July 2023 inviting AA to withdraw her judicial review claim in light of the Stage 2 Deportation Decision. Following AA’s refusal to do that, the SSHD wrote again on 7 July 2023, but AA declined to withdraw her claim stating in writing that the Stage 2 decision was legally defective.

27. On 12 July 2023 the SSHD wrote to AA stating that the following decisions had been withdrawn: (a) the “Stage 1 Deportation Decision” issued on 5 January 2023; (b) the “Stage 2 Deportation Decision” dated 29 June 2023; and (c) the EUSS refusal dated 29 June 2023. The SSHD also indicated she would be seeking a case management hearing if the claim was not withdrawn as academic.

28. The Head of the Offender Management Unit explained in a statement dated 19 July 2023 that the Prison had been progressing assessment of AA for release on HDC, but she did not have a suitable address to go to. Later, the Prison Director stated that AA had refused the offered HDC accommodation on 21 July 2023 and so, pursuant to the HDC Framework, HDC would be refused as there were fewer than 10 days until AA’s conditional release date of 9 August 2023. In the course of these proceedings the Claimant has been released from prison and her EUSS application was granted. DHCJs Brimelow KC and Ford KC

29. The Claimant did not withdraw the judicial review claim, and on 17 July 2023 the SSHD made the application that (inter alia) the expedited substantive hearing of the judicial review listed for 25 July 2023 be converted into a case management hearing, to consider whether the claim should be dismissed as being academic. .

30. That Following the converted hearing, DHCJ Brimelow KC, after detailed consideration of authority accepted the claim was academic, but held that there was a need in the public interest for clarification, and the matter should proceed

31. She determined, following Silber J in R (Zoolife) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) , at paras 32-36 in exceptional circumstances (by reference to R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 ) that the case was academic but, in the public interest it should be heard.

32. She said also: “51 In summary, the position of the SSHD remained that post the Immigration Act 2014 , which changed appeal rights, the decision to deport was taken at stage 1 whilst the taking of further representations was to determine whether deportation remained appropriate. Ms. Reeves argued that there is nothing objectionable to the stage 1 decision letter having two purposes, namely notice of liability under the EEA Regulations 2016 and notice of a decision to deport under the Immigration Act 1971 and Borders Act 2007.

52. In my view, this approach emasculates the appeal rights within the EEA Regulations 2016. It certainly creates confusion which impacts upon a consistent application of the HDC. Law which becomes arbitrary in its application loses its grounding in equal justice.”

33. The Deputy Judge also said this:

62. The circumstances of the case of AA are worthy of a pause and of highlighting. She was a vulnerable young woman with a baby, found to be a victim of modern slavery and enduring her first experience of detention. The obvious confusion by the SSHD as to whether she was the subject of a deportation decision or whether she was liable to deportation and so eligible for HDC impacted negatively upon AA’s resettlement outside prison. The Director of the Prison, seeking information from the SSHD on the immigration status of AA, similarly was confused by the information and made his own errors in the process.

63. I take into account Mr. Stern’s evidence that many similar cases do not reach advice stage and by the time the decision at the Stage 1 is considered the prospect of HDC has been overtaken by other decisions. Further the specific confusion arises from the combined letter which addresses the EEA Regulations 2016 and a decision to deport under the Immigration Act 1971 . In addition, this decision making, according to Mr. Stern, primarily affects those prisoners who are under 21 years old.

64. These are exceptional circumstances in that they relate to predominately young and vulnerable people who are being detained, with SSHD and individual prison Governors confused and inconsistent in whether they are eligible for HDC after the combined stage 1 letter is served on a detainee. I consider that it is in the public interest for this Claim to continue albeit expedition is no longer required. I agree with submissions that the SSHD should be given sufficient time to reflect on its position, consider the combined stage 1 form and submit its Detailed Grounds of Defence and any evidence it seeks to rely upon. “

34. She also stayed the Claim against Sodexo, finding that it was fact sensitive and the Zoolife criteria were not met.

35. After DHCJ Brimelow’s decision, this case was listed for a directions hearing in accordance with an order of Ritchie J dated 28 August 2024. It was heard by DHCJ Ford KC who reflected upon the SSHD’s change of position and in a judgment dated 14 November 2024 set out the two issues that were raised as follows: “ … Ground 2(a) is that the stage 1 letter issued to the Claimant could not, as a matter of law, constitute a “decision to make a deportation order” within the meaning of section 259 of the CJA . … it is contended that a stage 1 letter is a decision that someone is liable to deportation and not a decision to deport. It is, in effect, an argument of statutory interpretation based on the meaning of section 259 CJA 2003 …

7. The second ground, numbered ground 2(b), is a contention that the Defendant acted unlawfully by deeming the Claimant to be liable for deportation under section 3(5) of the Immigration Act 1971 on the basis that her deportation was conducive to the public good. In particular, it is said that the Defendant was statutorily barred from treating the Claimant’s deportation as conducive to the public good by virtue of section 3 (5A) of the Immigration Act 1971 … of the grounds, meaning that she was not ineligible for release on HDC leave by virtue of s.259 (a) CJA or on any other basis. “8 … the Defendant has reconsidered her position and she now accepts that (i) the letter issued to the claimant was not a notice of a decision to make a deportation order within the meaning of section 259 (a) CJA and (ii) what it refers to as a “combined” stage 1 decision letter - that is, a decision letter affecting those who have pending applications for leave under the EU Settlement Scheme - does not have the effect of being a notice of a decision to make a deportation order within the meaning of section 259 (a) CJA 2003 . …

9. From what I have seen it appears that these concessions of the Secretary of State are based upon reasons which correspond to ground 2(b) of the Claimant’s claim, and not to ground 2(a): …It is therefore restricted to “relevant persons” to whom the EEA Regulations 2016 continued to apply and who are issued with “combined” stage 1 notices. That is equally clear from §15 of the Defendant’s skeleton.”

36. Before DHCJ Ford KC the SSHD again argued that the claim was academic in light of the concessions made and the withdrawal of the “stage 1 letter” and the deportation order. DHCJ Ford KC followed the reasoning of DCHJ Brimelow.

37. He encapsulated DHCJ Brimelow’s reasoning and recorded that before him:

14. It seems the principal additional factor is that the Defendant now concedes the Claimant should have declaratory relief and has put forward a proposed order to that effect. But the scope of the relief is not agreed. The Claimant contends, for example, that important matters remain unresolved by the concession, including whether a stage 1 notice of deportation can ever be a “decision to make a deportation order” for the purpose of s.259 (a) of the CJA 2003 , the issue raised by ground 2(a). In the skeleton argument for the Defendant, she maintains that a “standard” stage 1 decision, not made in respect of person with rights under the EU Withdrawal Agreement, is a decision for the purpose of section 259 of the CJA 2003.

38. DHCJ Ford KC however did not understand DHCJ Brimelow’s decision as emphasising the need for legal clarity solely in relation to stage 1 letters in respect of prisoners to whom the EEA Regulations applied. She had referred to confusion arising also from whether a stage 1 letter could lawfully be a decision to deport, the issue raised by ground 2(a). He declined to go behind her unappealed decision.

39. The SSHD has put an argument again on this basis before me. The Issues before me

40. The central interpretive issue which AA says still remains, and is not the subject of concession, is whether a decision letter of the type sent to AA dated 5 January 2023 could be “a decision to make a Deportation Order” where no opportunity to make representations has been given to the recipient before the making of that decision, but only a right to make representations afterwards.

41. Accordingly, for the purposes of this hearing the remaining matters in contention, as they seem to me to be: (a) Whether, as a preliminary point the Court should accede to the SSHD’s yet further, renewed application for the Court to refuse to hear the case, if not (b) Whether the purported Decision to make a Deportation Order communicated by the Challenged Decision was (aside from other arguments concerning EEA Regulations etc) capable of constituting a Decision to Deport under the relevant legislation where it had not been preceded by an indication of liability to deportation with an invitation to make representations why a Deportation Order should not be made. This necessarily involves the question of what is the lawful process of deportation decision-making under these Acts. The Preliminary Point

42. This case came before me, initially as a paper application some 10 days before the date of the full hearing in which the Secretary of State once again invited the Court to allow the Claim on certain terms, including that it was not necessary to address the wider basis of challenge raised by the Claimant. I declined to accede to this application, but did not shut out further submissions if the SSHD were so advised

43. As set out above, the reasons for DHCJ Brimelow’s decision was on the basis of materials showing predominantly young people, who were served with such notices in circumstances involving EU claims and deportation, (and another case, non-EEA). There was evidence individual prison governors were confused and inconsistent as to whether such prisoners are eligible for HDC after a combined stage 1 letter was served on the detainee.

44. At the hearing on 14 November 2024 before DHCJ Michael Ford KC, he declined to go behind her reasoning and decision.

45. In this case I required by Order dated 12 May 2025 an agreed list of outstanding issues. This was apparently not possible, so I had individual Statements of Issues from each. However, I agree with the description of the issues set out above by the deputy judges.

46. Furthermore, I decline to go behind their reasoning. I do not go so far as to determine, as the Claimant by application, invited me to, that the SSHD’s yet further application was an abuse. I should say it came close in my view, and I do reject it.

47. Although content to abide by the reasoning and decisions of the other judges who have decided this point, I nonetheless addressed my mind to it. Had I been deciding the matter afresh, I would accept as submitted by Ms Weston KC and Mr Ó Ceallaigh KC there are particular matters in the public interest for the case to be the subject of a reasoned decision. They are (a) I accept there was confusion at the Home Office at the time of the decision-making and that the confusion persisted over some time, as evidenced by the piecemeal concessions made in the course of this case. (b) I further accept that whilst the Home Office has asserted it has ceased to use letters in the form of that used in this case, there is still considerable scope for confusion as to the relevant requirements in this or a similar situation. (c) in truth, the issues at stake involve questions of law which are not fact -dependent, in that the process of deportation and the system of HDC, and the interrelationship of deportation with the HDC scheme, are governed by statutory provisions. The application of the statute in a variety of factual situations does not make this a “fact sensitive” decision such that a statement of principle is otiose. (d) I also accept as submitted on behalf of the Claimant, supported by the evidence of Mr Stern, that the HDC system is highly time sensitive. There is little opportunity, as his uncontradicted evidence in his statement shows, for a claimant in the position of AA to make any challenge to a process they believe to be unlawful, so the issue may not readily come before the Court again.

48. I found the case of R (L) v Devon County Council [2021] EWCA Civ 358 helpful in its emphasis upon the public interest supporting hearing a case where the issue is statutory construction not involving detailed factual consideration, and where the chance of challenge is slim given timescales and the circumstances of the potential challengers (see para 56). The observations of Males J in R (Serrano) v Secretary of State for Justice & Anor [2012] EWHC 3216 (Admin) at paras 15-17 are in point where a challenge to the HDC Policy was considered even though the SSHD had made an adverse deportation decision before the hearing.

49. T he grant of permission in this case was to challenge the lawfulness of the letter dated 5 January 2023. It seems to me quite clear that such a challenge involves asking some fundamental questions about the requirements of a lawful notice of liability to deportation, and a lawful notification that a Deportation Order has been made. For the avoidance of doubt, as stated, I accept the reasoning of DHCJs Brimelow KC and Ford KC. The latter expressly understood the reasoning of DHCJ Brimelow KC as including in the requirement for clarity, whether a stage 1 letter could ever lawfully constitute a decision to deport. The SSHD before me relied on the argument, as she had done before, that because on these facts for this Claimant as a “relevant person” that did not arise, it ought not to be decided. For the reasons given, I do not agree; in particular, resolution of the issue does not depend on particular facts and will, if achieved, conduce to clarity and resolve confusion. Legislative Framework

50. The issues arose within the framework of HDC arrangements for prisoners and the SSHD’s deportation regimes under the Immigration Act 1971 , the UK Borders Act 2007 and certain EEA legislation.

51. The SSHD’s power to release eligible prisoners on HDC leave before the end of their sentence is found in s.246(1) of the CJA 2003 . A prisoner may be released on licence if the length of his custodial sentence is at least six weeks, and the prisoner has served at least one-half plus four weeks of that period. In certain circumstances statute prohibits the exercise of the s 246(1) power. These so-called statutory bars include under ss(4)(f), where the prisoner is “ liable to removal from the United Kingdom ” which has a particular defined meaning given in s.259 of the 2003 Act .

52. The power to release on HDC licence is contained in section 246 of the CJA 2003 [emphasis added]: “246 Power to release prisoners on licence before required to do so (1) Subject to subsections (2) to (4), the Secretary of State may— (a) release on licence under this section a fixed-term prisoner... at any time during the period of 180 days ending with the day on which the prisoner will have served the requisite custodial period. … (4) Subsection (1) does not apply where— … (f) the prisoner is liable to removal from the United Kingdom,”

53. Section259 CJA 2003 provides “s. 259 Persons liable to removal from the United Kingdom 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, (b) he is liable to deportation under section 3(6) of the Act , (c) he has been notified of a decision to refuse him leave to enter the United Kingdom, (d) he is an illegal entrant within the meaning of section 33(1) of that Act , or (e) he is liable for removal under section 10 of the Immigration and Asylum Act 1999 (c. 33).”

54. By section 3(5) of the Immigration Act 1971 a person who is not a British citizen is “… liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good …”

55. Under Section 3 (5A) protections from deportation are given where certain conditions are met thus: “3(5A) The Secretary of State may not deem a relevant person's deportation to be conducive to the public good under subsection (5) if the person's deportation— (a)would be in breach of the obligations of the United Kingdom under Article 20 of the EU withdrawal agreement, Article 19 of the EEA EFTA separation agreement, or Article 17 or 20(3) of the Swiss citizens' rights agreement, or (b)would be in breach of those obligations if the provision in question mentioned in paragraph (a) applied in relation to the person.”

56. Those Article 20 Withdrawal Agreement protections provided that EEA nationals such as the Claimant who were residing in the United Kingdom on 31 December 2020 and continue to reside thereafter, might only be deported in accordance with the provisions of the Citizens’ Directive where the conduct took place before the end of the transition period. This provision reflects a continuation of the position pre-Withdrawal. In R(oao Connell) v Secretary of State for the Home Department [2018] 1 WLR 3930 it was said by Sir Stephen Richards at para 34 that “…to make a deportation order against an EEA national on the ground that his deportation was, by statute, assumed to be conducive to the public good would be plainly contrary to the requirements of EU law and cannot have been the legislative intention.”

57. That case also considered the powers in the UK Borders Act 2007 which provides for the automatic deportation of foreign criminals. In certain circumstances the SSHD must make a deportation order, but that obligation is subject to certain exceptions, relevantly here, they include the EEA position (which applied to AA) thus: “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 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3) Condition 2 is that— (a)the offence is specified by order of the Secretary of State under section 72(4) (a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b) the person is sentenced to a period of imprisonment. (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), … … (6B)Exception 7 is where— (a) the foreign criminal is a relevant person, and (b) the offence for which the foreign criminal was convicted as mentioned in section 32(1)(b) consisted of or included conduct that took place before IP completion day. (6C) For the purposes of subsection (6B), a foreign criminal is a “relevant person”— (a) if the foreign criminal is in the United Kingdom (whether or not they have entered within the meaning of section 11(1) of the Immigration Act 1971 ) having arrived with entry clearance granted by virtue of relevant entry clearance immigration rules , [ this means the person has entry clearance granted under Appendix EU (Family Permit) to the Immigration Rules. ] (b) if the foreign criminal has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules [this means the person has been granted leave to enter or remain under the EUSS.] …. (c) if the foreign criminal may be granted leave to enter or remain in the United Kingdom as a person who has a right to enter the United Kingdom by virtue of— (i)Article 32(1)(b) of the EU withdrawal agreement, … (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.” [Emphasis added].

58. Thus, before the end of the transitional period, s.33(4) provided an exception to the duty to deport a foreign criminal where rights under EU treaties would be breached. The effect of these provisions and the EEA protection from automatic deportation is continued by further regulations made in 2020 in respect of conduct occurring before the end of the transition period.

59. There was a “one-stop notice” served with the Challenged Decision requiring any information relied upon to be produced by the recipient. This was sent pursuant to s.120 of the Nationality Immigration and Asylum Act 2002 which states: “120 Requirement to state additional grounds for application etc (1) Subsection (2) applies to a person (“P”) if— (a) P has made a protection claim or a human rights claim, (b) P has made an application to enter or remain in the United Kingdom, or (c) a decision to deport or remove P has been or may be taken. (2) The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out— (a) P's reasons for wishing to enter or remain in the United Kingdom, (b) any grounds on which P should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which P should not be removed from or required to leave the United Kingdom. (3) A statement under subsection (2) need not repeat reasons or grounds set out in— (a) P's protection or human rights claim, (b) the application mentioned in subsection (1)(b), or (c) an application to which the decision mentioned in subsection (1)(c) relates.”

60. It stated among other things “ you must now tell us of any reason you have for wishing to remain in the UK ”, and “ If you think there are any reasons why you should not be deported you must send them to ….”

61. The SSHD relies upon this notice as evidence that it is intended that a Part 1 decision is a decision to deport and there is a right to make representations only after it has been served. Submissions AA

62. AA submits that authority supports a two-stage process to deportation decision-making and that a person has not been “ notified of a decision to make a deportation order against him ” for the purposes of the CJA 2003 where they have only been notified of a Stage 1 decision. In other words, Ms Weston KC submits that it was not the case that AA was ineligible for HDC when she was served with the Challenged Decision, described as a Stage 1 decision. Nor is it the case that therefore only ex post facto may any representations be made.

63. In the Claimant’s Statement of Facts and Grounds Ms Weston KC and Mr Ó Ceallaigh KC set out the Home Office Guidance on Conducive Deportation (Version 1.0 of 25 November 2021 in force until amended on 8 June 2023 and again thereafter in May 2025) which also suggested the two-part process: “78. In accordance with the Home Office Guidance on Conducive Deportation (Version 1.0, published on 25 November 2021 (in force until 8 June 2023 when it was replaced by an amended version), a “decision to make a deportation order” is divided into two “stages” before the Home Office is able to obtain a Deportation Order: a. Firstly, a “Stage 1 decision to make a deportation order”, in which the decision letter must inform the person that they may make representations within 20 working days. This Stage is used to inform the person of their liability to deportation on non-conducive grounds. The Guidance states at this stage that the decision letter must set out all disclosable information held by the Home Office, and specifically directs caseworkers that consideration of outstanding human rights claims “should be deferred until after the person has had the opportunity to make further representations so that all matters can be considered together” This demonstrates the two-stage nature of the decision to make a deportation order. b. Secondly, once representations have been received (or alternatively, the 20 working days passes without representations), the caseworker “must consider whether deportation remains appropriate in light of any new information or evidence provided (Guidance, p. 49, p. 50, new version). The “Stage 2 decision to make a deportation order” follows these considerations (if applicable) if it is decided to proceed with the decision to make a deportation order.” As to Immigration Act 1971 deportations AA notes: “79. For deportations under the Immigration Act 1971 , a Deportation Order can only be made once an appeal right has been exhausted (Guidance, p. 54). The Guidance goes on to state that in terms of service of the stage 2 deportation decision a caseworker “must send the stage 2 deportation decision, with the deportation order (if this was obtained), to the person by email or post. If the person is detained in prison or in an immigration removal centre, you must also send a confirmation of conveyance” (Guidance, p. 54, p. 55 new version).”

64. The Claimant argues (1) Parliament has expressly retained HDC eligibility for persons who are liable to deportation. Liability is not enough to deprive of the chance of HDC. As the heading to s 259 (a) makes clear, she submits, it is those for whom a decision to make a deportation order has been taken rather than the person who is merely liable, and for whom it may happen that who are ineligible. (2) The function of a ‘Stage 1’ notice is to give a person an opportunity to provide material that goes to the question whether a deportation order should be made. A ‘Stage 2’ decision is then taken whether to deport that person in light of the information received. The policy and the case law reflects this approach. (3) Until a stage 2 decision is taken, a person is only liable to deportation, and a single decision cannot simultaneously do both things of make liable and yet notify of a decision to deport as the Challenged Decision purported to do here. (4) It is wrong to suggest that because a decision has been made that deportation would be “conducive to the public good”, a decision to deport has been made. These are different concepts. This is clear from the structure of the section: even if the conducive to the public good criterion is fulfilled, the statute mandates looking to the exceptions that might apply under section 33 of the 2007 Act . The preliminary decision in these circumstances cannot be characterised as in fact a decision to deport.

65. The Claimant relies on R (Mormoroc) v The Secretary of State for Justice [2017] EWCA Civ 989 (para 17, and para 58); and R (Serrano) v Secretary of State for Justice & Anor [2012] EWHC 3216 (Admin) (at paras 23 and 28) as reflecting this well-established approach.

66. In terms of the facts of the case, as noted, the SSHD now accepts that the Claimant was a “relevant person” to whom the savings of the EEA Regulations applied, and also that in terms of an EEA decision, (an exception to the deeming provisions of the 2007 Act ) a “combined Stage 1 letter” was not a decision to make a Deportation Order.

67. The Claimant drew attention to the HDC Policy Framework. It indicates that a foreign national prisoner who is liable to deportation but has not been served with a Decision to Deport, is presumed unsuitable for HDC, but may make representations if they consider their case is exceptional – and be given reasons if refused. If their status is unclear, they are presumed unsuitable until there is clarity.

68. AA submits that the stated statutory ineligibility for HDC under s.259 (a) is clearly confined to those whose removal from the UK is sufficiently certain, subject to appeal. - In a deportation case, this will mean those who are liable, and in respect of whom a deportation decision has been made, reflecting the two-stage deportation process. The section itself reflects the two-stage process.

69. She points to the statement of what a letter in the form of the Challenged Decision is designed to do in a potential EEA case. A “combined stage 1 decision letter” should be issued to “determine whether to make a deportation order”. This is different of course from the position adopted by the SSHD’s who says she “ changed the approach so that she makes a deportation decision at Stage 1, without first inviting representations… ” (see para 58).

70. It is not the case AA argues, that as the SSHD alleges, any change to appeal rights by the 2014 Act has affected this position. To the extent that the SSHD has argued that a Stage 1 decision can be a Decision to Deport under the 2003 Act because there is no question as to the statutory framework, and the “conducive decision” has been taken, this is wrong, argues AA. It means that only ex post facto representations can be made by the foreign prisoner.

71. The process of deportation contains 2 stages, she submits, reflected in the statutory language and it is wholly artificial to state that because a decision has been made, whether actually or deemed by statute, that deportation would be conducive to the public good, that is the same or can be conflated with a Decision to Deport. Secretary of State

72. The SSHD‘s case is that a Decision to Deport under the 1971 and 2007 Acts had already been made in this case by the 5 January letter; there was no right to make any representations before that decision was made. Any caselaw relied upon by AA that suggested the contrary, or a different process, was immaterial as having been decided before the implementation of the Immigration Act 2014 which withdrew appeal rights under the Nationality and Immigration Act 2002. That changed the position said the SSHD: before the amendment there was a two-stage process, after implementation, there was not - save that representations might be made after the event. It was argued that as at 5 January 2023 therefore, the SSHD had already made her Decision to Deport AA under the 1971 and 2007 Acts, and already determined that no exceptions under s.33 of the latter Act applied. The letter was thus notice of a Decision to Deport which had already been made under those Acts.

73. Although his primary position was that for this Claimant a decision to deport was made under the EEA regime , Mr Gullick KC submitted that the Challenged Decision did in fact communicate two things – that the Claimant may be liable pursuant to the EEA Regulations to Deportation, and also that a decision has been made to Deport under the non-EEA provisions.

74. If I understood him, he submitted that a decision could be made as what he called “ part of a process of decision-making ” such that this was not merely the first stage of the process, but could also be regarded as the final decision that came within s 259 , and thus excluded the prisoner from benefitting from the HDC regime. He relied on the wording of s.259 which did not contain the words “final decision”. A stage 2 decision is in any event was not necessarily a final decision he said, emphasising the “part of a process” point.

75. He submitted that the statutory scheme envisages that the SSHD will provide a person in respect of whom a decision to deport has already been taken with an opportunity to make representations in respect of their removal after the decision is made. The fact that those representations are considered and the initial decision may or may not be maintained thereafter, does not mean that the decision to deport at stage 1 is any less of a decision to deport within the meaning of s 259 (a) CJA 2003 . He relied on a Notice stated to be issued under s.120 Nationality Immigration and Asylum Act 2002 which was served on the Claimant with the Challenged Decision. Discussion

76. In my judgement it is impossible to accept the submissions of Mr Gullick KC as to the meaning of the material phrase in s.259 (a) of the CJA 2003 .

77. The phrase “ notified of a decision to make a deportation order against him ” in the context of a deportation must mean that a final decision, that is to say, what is sometimes called a stage 2 decision, must have been made and communicated to the person before the exemption barring use of the powers under section 246(1) incepts. The two separate concepts of liability to deportation and the , making of a deportation order still underlie the statutory framework of which the later statute is part.

78. This statutory structure may be seen in that s.3(5) of the Immigration Act 1971 shows the effect of deeming a deportation conducive under the statute is the liability of the subject to deportation. The 2007 Act replaced the deeming discretion of the SSHD in respect of foreign criminals - now the statute performs that role. Nonetheless, the compulsory deeming results only in liability to deportation - without the SSHD being required to address her mind to the issue of conducive to the public good. The section says “ for the purpose of section 3(5) (a) the deportation of a foreign criminal is conducive …” That must mean in my judgement that the result of the automatic statutory deeming as conducive, is liability to deportation, not more.

79. There is in my view nothing in later statutory provision that derogates from this structure of the 1971 Act .

80. The 2007 Act also provides separately for certain foreign offenders, that a deportation order shall be made. The compulsory outcome is however subject to exceptions, which must be considered. There is still, under the compulsory deportation provisions, a two-stage process.

81. As to the meaning of s. 259 , turning to the plain meaning of the words in context, it is significant that the section creates a term of art “liable to removal from the UK” under ss4(f). It is apt to cover a number of immigration situations where the SSHD has made a final decision about an applicant. The two-stage character of the deportation exercise is reflected in the wording of the subsection: a person must be both liable to deportation under section 3(5) of the Immigration Act 1971 (c. 77) and have been notified of a decision to make a deportation order against him.

82. The first part of the definition, liability to deportation, may have been accomplished automatically, but requires nonetheless, communication of this discrete status to the potential deportee. The second part requires there to have been a decision, and notification of the deportation decision. The two-part process of deportation decisions is written through the relevant statutes and the case law. Indeed it is reflected in places in the policies of the SSHD that were before this Court as the Claimant highlighted.

83. The context of the phrase is the various enacted immigration acts; these reflect the two-stage process. The imprecise “process of decision-making” submission of the SSHD is wrong in my judgement as a matter of the meaning of statutory the words in context.

84. The corollary of the SSHD’s submission is that there is no stage 1 letter advising of liability and no opportunity to make any representations at all until after a deportation order is made, i.e. in effect on an application that it be revoked, not that it not be made.

85. It seems to me however, that a person is entitled to make representations that the Deportation Order should not be made before the action is complete, and the narrowing of the general right of appeal provisions in s.82 of the 2002 Act by the 2014 amendments do not require or suggest otherwise. On one argument, if there is no general right of appeal, the opportunity to make representations once liability has been communicated, assumes more importance.

86. Before the 2014 Act , there was an in-country right of appeal (subject to certification) against a decision to make a deportation order; a refusal to revoke a deportation order; and a decision that s 32(5) of the 2007 Act applied. Section 15 of the 2014 Act removed these rights of appeal.

87. As to the s120 notice, I accept the submission of the Claimant. The purpose of the section, as is reflected in the wording, is to articulate a request to disclose any new grounds not as yet disclosed for wishing to remain in the UK, including any “reasons why you should not be deported.” In other words it is to ensure a continuing positive obligation to come forward with information to enable decisions to be made and not clog the system with late materials, enabling the SSHD to ensure a cut off for representations.

88. As Ms Weston KC stated in her skeleton argument: the statutory scheme requires the SSHD to make a decision whether to deport a person in light of certain mandatory statutory considerations and any information given in response to a notice of liability to deport. I agree with her also that elementary common law fairness principles are of similar effect and the liability stage affords an opportunity to make representations before the final decision, which, if it is not communicated, it cannot.

89. It is not possible to accept the submission of the SSHD that because of the introduction by the 2014 Act of curtailed appeal rights, the process of making a deportation decision somehow changed. The submission is that the two-stage process was in some way abrogated by the changes wrought in the 2014 Act . In my judgement there is nothing about the withdrawal of a right of appeal after a Deportation Order is made that suggests there is a withdrawal also of the right to make representations before a Deportation Order is made. Nor does it abrogate clearly, which it would have to, the well-established two-stage process in deportation cases deriving from the 1971 Act .

90. The notion that deeming deportation conducive to the public good is to be elided with a decision to deport is also not supported by the structure of the statutes.

91. The 1971 Act shows they are notionally different: section 3 by ss (5) provides: “(5) A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good; or (b) another person to whose family he belongs is or has been ordered to be deported.

92. In my judgement caselaw reinforces this conclusion.

93. In R (Mormoroc) v The Secretary of State for Justice [2017] EWCA Civ 989 the Court dealt with the automatic deeming provisions contained in sections 32 and 33 of the 2007 Act . There the appellant sought unsuccessfully to challenge the policy of the Secretary of State that, in the case of a foreign prisoner who has been notified of liability to deportation, but no decision to deport has yet been made, the prisoner “should be presumed unsuitable to be considered for release on HDC unless there are exceptional circumstances justifying release ”.

94. The Court introduced the issue thus: “2. The appellant’s case seeks to challenge the policy of the Secretary of State contained in paragraph 2.47 of Prison Service Instruction (“PSI”) 52/2011 that, in the case of a foreign prisoner who has been notified of liability to deportation, but no decision to deport has been made, the prisoner “should be presumed unsuitable to be considered for release on HDC unless there are exceptional circumstances justifying release”. In contrast, in the case of UK national prisoners and foreign prisoners who are not liable to deportation, eligibility for HDC is governed by PSI 6700 under which release on HDC will normally be granted “unless there are substantive reasons for retaining the prisoner in custody”.

95. The Court set out the provisions of section 246 and 259 of the 2003 Act and said: “14. I have already set out sections 246 and 259 of the 2003 Act . Section 3(5) of the Immigration Act 1971 provides that: “A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good”. Section 32 of the 2007 Act , headed “Automatic Deportation” makes the deportation of a “foreign criminal” automatically deemed “conducive to the public good” and requires the Secretary of State to make a deportation order subject to the application of the exceptions in [and it is set out]. section 33 . Section 32 provides, inter alia, as follows: …” Flaux LJ continued … “16. The effect of section 259 of the 2003 Act is reflected in paragraph 2.46 of PSI 52/2011 which provides: “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] …

17. Paragraph 2.47 deals with the situation where a prisoner has been notified of liability to deportation via Form ICD 350, but there has not yet been a decision to deport. It is thus the situation which covered this appellant, a nd it is the application of that policy to the appellant which is the primary target of the appellant’s challenge by way of judicial review. ….” “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. …” Emphasis added.

96. As stated above the SSHD submits that this is no longer reflective of the position since the 2014 Act withdrew a range of appeal rights from those subject to (inter alia) deportation decisions.

97. Her position is expressed thus in the Defendant’s Skeleton Argument for the hearing: “…74 “it is the SSHD’s position that a standard stage 1 decision is a decision to make a deportation order for the purpose of s.259 of the CJA 2003 . It reflects that the SSHD has decided that the person’s deportation is conducive to the public good (which the SSHD accepts she could not do in the Claimant’s case) pursuant to s. 3(5) IA 1971 or s. 32(5) UKBA 2007 . This will be notified to them in the stage 1 notice ICD 4936 (non-EEA) along with a “one-stop” notice (pursuant to s. 120 of the Nationality, Immigration and Asylum Act 2002 ) inviting them to make representations as to any grounds on which they should not be removed; the person is not invited to give representations on whether their deportation is conducive to the public good. The fact that a person may make representations in response, and ultimately a deportation order may not be made, does not change its character as a decision to make a deportation order – indeed, the premise of section 120(1) (c) and (2) of the 2002 Act is that representations may be made after a decision to deport has been taken.” [Emphasis added.]

98. The argument is that absent the EEA dimension, a Stage 1 decision letter would constitute the decision to make a deportation order within the meaning of section 259 of the 2003 Act . Mr Gullick KC submitted that there was, after the amendments to appeal rights in the 2014 Act , (reflected in section 82 of the Nationality Immigration and Asylum Act 2002 ) no such thing as the indication of a liability to deportation in domestic circumstances. I do not agree. As stated, nothing compels this striking change, which shuts out a potential deportee from one tranche of representations. – those before the Deportation Order is made.

99. My attention was also taken to the case of Yussuf (meaning of “liable to deportation”) [2018] UKUT 00117 (IAC) a decision of Lane J and UTJ Hanson where the effect of the automatic provisions was set out by reference to the Supreme Court in Hesham Ali v Secretary of State for the Home Department The UT held it is the [2016] UKSC 60 . liability to deportation which flows from the automatic statutory deeming of where the public interest lies in a foreign national offender case. The relevant part is as follows: “ 24. There is, we consider, considerable significance in the opening words of section 32(4) : “For the purpose of section 3(5) (a) … the deportation of a foreign criminal is conducive to the public good”. It is, in our view, impossible to resist the conclusion that those opening words impliedly amend section 3(5) (a) by removing the “deeming” function of the Secretary of State under that provision, in the case of a foreign criminal within the meaning of the 2007 Act , and substituting an automatic deeming provision.

25. That is effectively what the Upper Tribunal found in MK, as long ago as 2010 (see above). Paragraphs (1) and (2) of the italicised words in the reported version of the case are, in our view, a correct expostulation of the law:- “(1) In automatic deportations made under s.32(5) of the UK Borders Act 2007 the respondent’s executive responsibility for the public interest in determining whether deportation is conducive to the public good has been superseded by Parliament’s assessment of where the public interest lies in relation to those deemed to be foreign criminals within s.32(1) -(3). In consequence the respondent’s view of the public interest has no relevance to an automatic deportation. (2) In such cases by virtue of s32(4) it is not open to an appellant to argue that his deportation is not conducive to the public good nor is it necessary for the respondent to argue that it is.”

26. The matter has, we find, been put beyond doubt by the judgments of the Supreme Court in Hesham Ali. Lord Reed held as follows:- “10. Section 32(4) of the 2007 Act provides that, for the purposes of section 3(5) (a) of the 1971 Act , “the deportation of a foreign criminal is conducive to the public good”. The liability of “foreign criminals” to deportation, under section 3(5) (a) of the 1971 Act , does not therefore depend on any assessment by the Secretary of State: it is automatic. The expression “foreign criminal” is defined by section 32(1) of the 2007 Act as meaning a person who is not a British citizen, who is convicted in the United Kingdom of an offence, and to whom one of the conditions in section 32(2) and (3) applies. The first of those conditions is that the person is sentenced to a period of imprisonment of at least 12 months. The second is that the offence is specified by an order made by the Secretary of State, and the person is sentenced to a period of imprisonment. No such order has yet been made.”

27. Lord Wilson had this to say- [although dissenting on the Article 8 issue] “67. A person is a “foreign criminal” under section 32(1) and55(2) of the 2007 Act only if, not being a British citizen, he was convicted in the UK of an offence for which he was sentenced to imprisonment for at least 12 months. So the misleadingly entitled “automatic” deportation, for which the section provides, applies in effect only to a serious offence. Subsection (4) provides that the deportation of a foreign criminal is conducive to the public good for the purpose of section 3(5) (a) of the 1971 Act , in other words with the result that he should be liable to deportation. So it is only the liability to deportation, not the deportation itself, which the section makes automatic.”

100. Yussuf was a case about the effect of being liable to deportation, and whether the SSHD did have power to revoke the appellant’s indefinite leave to remain. It was a case after the new appeal rules (see para 39).

101. In my judgement this analysis from Yussuf , adopting the analysis of the Supreme Court in Hesham Ali demonstrates the two-part nature of the deportation process. (It is of course the case that Hesham Ali was not a case on the new amendments effected by the 2014 Act , but there is no suggestion in Yussuf that the passages cited are of no relevance because appeal rights had by then been curtailed.

102. The proposition advanced by the Claimant is that general fairness requires an opportunity to make representations before the decision to deport is made and that the removal of an appeal right does not abrogate the SSHD’s obligation to allow the opportunity. I agree for the reasons given. Accordingly

103. I allow this claim.

104. The Claimant says that where there is statutory deeming of liability, the Claimant is entitled to proffer information – thereafter a decision whether to deport is made. If time elapses and no information is forthcoming, then the SSHD may also make a decision. The CJA 2003 provisions are untouched by any change in appeal rights. I agree.

105. The Stage 1 decision is not a decision to make a deportation order within the meaning of s.259 (a) CJA 2003 . The liability to deportation may be communicated, in a stage 1 decision, but a decision to deport, also to be communicated is a separate matter. Only the latter, not the former disentitles a person from enjoying HDC leave.

1.