Lopes, R (On the Application Of) v Secretary of State for the Home Department & Anr

Factual and Procedural Background

This appeal arises from a decision by Judge Andrew Baker on 17 September 2020 refusing renewed applications for permission to apply for judicial review and for a writ of habeas corpus. The appellant, a 53-year-old citizen of Guinea Bissau, was subject to an international arrest warrant issued by the Criminal Chamber of Lisbon in 2002 for robbery-related offences allegedly committed in 1999. The appellant came to the United Kingdom in 1999, claimed asylum which was refused, and was later convicted of murder in the UK in 2003, receiving a life sentence with a minimum term of 15 years and 6 days.

The appellant was arrested under an extradition warrant in 2004 and committed to await the Secretary of State's decision on extradition to Portugal. He was informed he was eligible for the Tariff Expired Removal Scheme (TERS) but only after Immigration Enforcement confirmed no barriers to removal, such as outstanding extradition proceedings. A deportation decision notice was served in 2017, with the appellant disclaiming his right of appeal. However, the Secretary of State deferred deportation due to ongoing extradition proceedings, which took precedence over deportation according to published policies.

The appellant applied for TERS in 2019, but was informed that extradition proceedings excluded him from removal under TERS. The Parole Board subsequently refused to direct his release, citing public protection concerns and the appellant's refusal to engage in risk-reduction programs due to maintaining innocence. The appellant challenged the refusal to deport him and the failure to extradite him, alleging irrationality, breach of published policy, and violation of Article 5 of the European Convention on Human Rights (ECHR).

Legal Issues Presented

1. Whether the Secretary of State’s refusal to deport the appellant pursuant to section 32A of the Crime (Sentences) Act 1997 was irrational or in breach of published policy.
2. Whether the appellant’s detention is unlawful or arbitrary under domestic law or Article 5 of the ECHR given the interplay between extradition proceedings and deportation.
3. Whether habeas corpus is an appropriate remedy in circumstances where a prisoner challenges detention pending extradition and deportation decisions.

Arguments of the Parties

Appellant's Arguments

• The refusal to deport the appellant until the Parole Board decides to release him is illogical and likely to cause indefinite delay, as the appellant is not participating in risk reduction due to maintaining innocence.
• The existence of extradition proceedings does not constitute a statutory bar to deportation; deportation and extradition are distinct processes and deportation can lawfully proceed if not for an ulterior purpose.
• The appellant must be presumed suitable for removal under TERS, and refusal to apply TERS constitutes a breach of published policy.
• The Secretary of State failed to act with due diligence to effect removal, rendering the appellant’s detention arbitrary and disproportionate under Article 5 ECHR.
• The Parole Board’s risk assessment is insufficient as a safeguard, as it is influenced by unproven allegations from Portugal, trapping the appellant in a “Catch-22” situation.
• The writ of habeas corpus should be available despite prior case law limiting its scope, as the appellant’s detention involves legal flaws.

Respondents' Arguments

• The appellant is lawfully detained pursuant to his life imprisonment sentence.
• Section 12(3)(a) of the Extradition Act 1989 prevents extradition while the appellant is serving his sentence.
• The appellant is ineligible for TERS removal because of an extant extradition request; therefore, removal cannot occur.
• The public interest supports extradition taking precedence over deportation to respect international obligations and ensure effective criminal justice.
• The Parole Board’s refusal to release the appellant is lawful, rational, and considers all relevant factors including risk to the public and likelihood of absconding.
• The appellant’s detention is not arbitrary under Article 5 as it is justified by the sentence and pending extradition proceedings.
• The TERS and Immigration Directorate Instructions (IDI) policies sensibly prioritize extradition over deportation, consistent with statutory frameworks and public policy.
• The application for habeas corpus adds nothing beyond the judicial review and is constrained by binding precedent limiting collateral attacks on lawful convictions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the dual statutory powers of the Secretary of State to order extradition under the Extradition Act 1989 and to make deportation orders under section 32A of the Crime (Sentences) Act 1997. The appellant met statutory criteria for deportation and his deportation was deemed conducive to the public good by statute.

The critical question was whether it was lawful for the Secretary of State to decline deportation in the exercise of discretion due to ongoing extradition proceedings. The court examined two key published policies: the Immigration Directorate Instructions (IDI) and the Prison Service Instruction (PSI) on the Tariff Expired Removal Scheme (TERS). Both policies clearly prioritize extradition over deportation.

The court interpreted paragraph 2.4.5 of the IDI as establishing a straightforward priority for extradition regardless of whether progress is currently possible, emphasizing practicality and consistency in decision-making. The PSI and associated guidance require that deportation orders be made and signed before TERS removal can proceed, and that removal under TERS is not mandatory but subject to discretion and eligibility.

Regarding the appellant’s detention, the court found analogy in the House of Lords decision in James v United Kingdom, noting the statutory framework requires Parole Board approval for release after the tariff expiry. The appellant’s detention was lawful domestically and not arbitrary under Article 5 ECHR, as the Parole Board’s decision was rational, unchallenged, and the appellant had the opportunity to reduce risk but refused to engage.

The court rejected the appellant’s “Catch-22” argument, emphasizing personal responsibility in cooperating with risk reduction to unlock release. The court also held that habeas corpus was not an appropriate remedy in this context, given binding precedent restricting collateral attacks on lawful convictions and sentences.

Holding and Implications

The Court of Appeal DISMISSED the appeal against the refusal of permission to apply for judicial review and for the writ of habeas corpus.

The direct effect is that the appellant’s detention pending extradition and deportation remains lawful and the Secretary of State’s discretion to prioritize extradition over deportation under the relevant statutory and policy framework is upheld. No new precedent was established beyond affirming the existing legal principles regarding the interaction of extradition, deportation, and detention law. The court confirmed that habeas corpus is not an appropriate remedy in these circumstances, reinforcing the role of the Parole Board in decisions about release after tariff expiry.