High Court clarifies position on eligibility for Home Detention Curfew

Unless and until a person has been notified that a decision has been made to make a deportation order against them, they are not liable to removal for the purpose of section 259 of the Criminal Justice Act 2003. The importance of that point in this case was that it means the claimant was eligible for release on Home Detention Curfew. The case is R (AA) v Sodexo Ltd & Aor [2025] EWHC 3404 (Admin).

Background

The claimant is an EEA national who came to the UK as a child in 2012. When she was 17 it appears that she committed an offence for which she was imprisoned, and that the offending was related to her being a victim of modern slavery. The claimant was referred to the National Referral Mechanism and recognised as a victim of modern slavery.

At the time of the judicial review, the claimant was a prisoner at HMP Peterborough which is operated by Sodexho. The challenge concerned the claimant’s eligibility for Home Detention Curfew, a type of release on licence. Certain conditions will mean that a person is not eligible for Home Detention Curfew, and one of these is where there has been a decision to make a deportation order for the purposes of section 259 of the Criminal Justice Act 2003, which states:

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, 

On 5 January 2023 the claimant was issued with a “combined stage one letter” stating that it was a notice that AA may be liable to deportation under the Immigration (EEA) Regulations 2016 and also a decision to deport under the Immigration Act 1971 and the UK Borders Act 2007. This type of letter is used when the Home Office is unclear on whether the 2016 Regulations apply.

Based on this letter, the Prison Director treated the claimant as ineligible for Home Detention Curfew. She was notified on 27 February 2023 that she was “presumed unsuitable for the scheme because your immigration status is not clear”.

On 13 April 2023 the Home Office’s Foreign National Offender Returns Command team completed a “HDC-FNP” form ticking “yes” to the question of whether a decision to deport had been made. However a note on the form contradicted this, stating that “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”.

The judicial review

The Home Secretary seemed quite determined that the matter not proceed to a full hearing, with the court noting that “repeated applications” were made seeking to prevent the court from determining the issue of whether a stage one letter “could ever lawfully constitute a decision to deport”. This included the withdrawal of the decisions under challenge and it then being argued on behalf of the Home Secretary that the point was academic.

Whether or not the matter was academic was considered as a preliminary issue. The court did not agree with the Home Secretary for the following reasons:

(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.

On the substantive issue, the claimant argued that until a stage two decision is taken telling the person that a deportation order will or has been made, a person is only liable to deportation. This was because “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”. The claimant submitted that:

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.

The court agreed, holding that liability to deportation and the making of a deportation order are two separate concepts. The court said that a stage two decision must have been made and communicated to a person before the exemption from eligibility for Home Detention Curfew could apply. The judgment concluded:

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.

Conclusion

Rather than the attempts to avoid the court deciding this matter at all, this seems to be a case where a clear concession from the Home Secretary that she was in the wrong here would have been a far more sensible approach.