A deportation case with a twist: R (Foley) v Secretary of State for the Home Department [2019] EWHC 488 (Admin) involved an Irish citizen who requested deportation but was denied it. Fans of the genre may recall the Connell case that we covered on the blog last year. The judgments make the rationale for what seems an odd request maddeningly obscure, but the reason is simple: being deported means being released from prison earlier would otherwise have been the case.

Mr Foley was so fresh off the Cork-Swansea ferry that he demanded euros rather than pounds in the course of his 2010 armed robbery. The speed with which he offended may have contributed to the sentencing judge’s decision to impose an indeterminate sentence for public protection; in other words, he has no fixed release date. He was therefore aiming to be considered for the tariff-expired removal scheme, rather than the early removal scheme for normal, fixed-term prisoners as was the case in Connell. But the official guidance tells us that the two schemes “operat[e] very similarly”, and Irish citizens face the same problem in both scenarios: the Home Office has a policy of only deporting Irish nationals in “exceptional circumstances”. That is obviously great news for most Irish people, but not for those who are seeking early release from prison.

Mr Foley argued that “exceptional circumstances” is in practice a blanket prohibition on deportations to Ireland, which would be an unlawful fettering of the Secretary of State’s discretion. Statistics show that “not one Irish prisoner was deported in the past three years”. But Mr Justice Supperstone held this to be perfectly consistent with a policy of only deporting people in exceptional circumstances, and the detailed Home Office consideration of whether or not Mr Foley should be deported or not was evidence that there is no blanket ban. There were several other grounds, but they all failed too.

There is some interesting discussion of the reason why a department generally obsessive about removing foreign criminals should actively refuse to get rid of those with Irish passports. Basically it comes down to the Common Travel Area which allows for passport-free travel between the UK and Ireland. Anyone deported there could always return, this time off the radar of the authorities. By keeping them here, the Home Office reckons the probation services can at least keep tabs on them. (Or in civil service-speak, “a decision not to deport an Irish citizen allows the individual concerned to participate in the full suite of offender management programmes in the UK”.)

The Secretary of State was not always so reticent. The closing pages of Brendan Behan’s classic memoir Borstal Boy include the verbatim transcript of the Irish writer’s UK deportation order. But that was in 1941 — so unless there is another war, or failing that a successful appeal in this case, Irish citizens look set to remain exempt from deportation.