Zhang v SSHD & Ors

Factual and Procedural Background

The Appellant, a Chinese national, was convicted of murder in Northern Ireland and sentenced to life imprisonment in 2008. Having served the minimum term (tariff expiry date 2 June 2021), he sought deportation to his country of origin, China. Unlike the arrangements in England and Wales, Northern Ireland’s statutory framework does not provide for the deportation of life prisoners post-tariff expiry under an early removal scheme. The Appellant’s challenge to this statutory exclusion was dismissed at first instance on grounds that no arguable case was established and due to delay. The Appellant appeals against that decision.

Legal Issues Presented

1. Whether section 32A and/or section 57(4) of the Crime (Sentences) Act 1997, which restrict the early removal scheme to England and Wales, are incompatible with Article 14 ECHR in conjunction with Article 5 ECHR by excluding Northern Ireland.
2. Whether section 55 of the Justice Act (Northern Ireland) 2016, which excludes life prisoners from the early removal scheme, is incompatible with Article 14 ECHR in conjunction with Article 5 ECHR.
3. Whether the Appellant’s judicial review challenge is out of time under the relevant procedural rules and if there is good reason to extend time.
4. The impact of section 6(6) of the Human Rights Act 1998 on the Appellant’s challenge to primary legislation.

Arguments of the Parties

Appellant's Arguments

• Section 6(6) of the Human Rights Act 1998 does not provide a complete defence to the challenge.
• Section 32A of the Crime (Sentences) Act 1997 discriminates based on residence (Northern Ireland vs England and Wales), constituting an 'other status' under Article 14 ECHR.
• The differential treatment created by section 32A cannot be justified.
• The judicial review challenge is not out of time.
• If the challenge is out of time, there is good reason to extend time.

Respondents' Arguments

• Section 6(6) of the Human Rights Act 1998 provides a complete defence to the Appellant’s challenge.
• The fact that the Appellant is imprisoned in Northern Ireland rather than England and Wales does not amount to an 'other status' for Article 14 purposes.
• Challenges to primary legislation on Article 14 grounds must fail as the provisions do not operate incompatibly with the Convention in all or almost all cases.
• Any difference in treatment is justified by the legitimate aim of respecting the devolved nature of UK law-making.
• The Appellant’s challenge is out of time with no good reason to extend time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Sterritt's Application [2021] NICA 4	Interpretation of section 6(6) of the Human Rights Act 1998 regarding primary legislation and public authority acts.	Confirmed that failure to enact primary legislation does not constitute unlawful act under section 6(1), defeating the Appellant’s challenge.
R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56	Concept of continuing effect in human rights claims and limitation periods.	Referenced to illustrate limitations on claims based on continuing effects; court found limitations in its applicability to the present case.
R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199	Application of time limits and extension discretion in judicial review claims under CPR 54.5(1).	Applied to affirm that unlawful legislation is not a continuing unlawful act resetting time limits; supports dismissal on delay grounds.
R (Badmus) and others v Secretary of State for the Home Department [2020] EWCA Civ 657	When grounds for judicial review claims first arise for limitation purposes.	Established that time starts when claimant is affected by the policy; applied to determine that Appellant’s claim was out of time.
Re Allister and Others' Applications [2022] NICA 15	Interpretation and application of delay rules under Order 53, Rule 4.	Referenced for the court’s approach to delay and discretion in judicial review applications.
Re Ewart's Application [2021] NI60	Section 6(6) and victim status in judicial review of primary legislation incompatibility.	Held to be obiter and lacking precedent value in relation to delay and standing issues in this context.
Re Steponaviciene's Application [2018] NIQB 90	Analysis of standing and delay issues in judicial review.	Supported the conclusion that Ewart has no precedent value on delay and standing in this context.
O'Connor v Bar Standards Board [2017] UKSC 78	Time limits in claims involving series of acts versus single acts.	Distinguished to show that the present case involves a single act and no continuing series of acts, affecting limitation analysis.

Court's Reasoning and Analysis

The court analysed the Appellant’s challenge primarily through the lens of the Human Rights Act 1998, focusing on section 6(6) which provides that a public authority’s failure to enact or propose primary legislation does not constitute unlawful conduct for Convention purposes. The Appellant’s claim that the statutory exclusion of life prisoners from the early removal scheme in Northern Ireland is incompatible with Articles 5 and 14 ECHR was found to be a complaint about the absence of primary legislation rather than an unlawful act by a public authority.

The court emphasised that the responsible bodies—the Ministry of Justice of England and Wales, the Secretary of State for the Home Department, and the Northern Ireland Department of Justice—are not law-making bodies empowered to amend the legislation in question. Therefore, the Appellant’s challenge is effectively to the failure of Parliament to legislate, which section 6(6) excludes from liability.

The court further considered the limitation issue under Order 53, Rule 4. It found that the Appellant’s grounds for judicial review crystallised by the expiry of his minimum term on 2 June 2021, but the claim was not initiated until 12 January 2023, well outside the three-month limit. The court agreed with the first instance judge that no good reason existed to extend time, rendering the claim time-barred.

The court reviewed relevant authorities on limitation and continuing unlawful acts, concluding that unlawful legislation is a single act and does not give rise to a continuing cause of action resetting limitation periods. The Appellant’s reliance on cases suggesting continuing illegality was rejected as inapposite.

Obiter comments from the first instance judge regarding the potential liberty interest were noted but not regarded as determinative or sufficiently developed to affect the outcome. The court declined to speculate further given the decisive effect of the section 6(6) analysis.

The court also clarified that prior decisions, notably Re Ewart’s Application, should not be cited as precedent on issues of delay and standing in this context, as those findings were obiter and did not address the fundamental section 6(6) issue.

Holding and Implications

The court DISMISSED the appeal and affirmed the judgment and order of the High Court judge in all respects.

The direct effect is that the Appellant’s challenge to the statutory framework excluding life prisoners in Northern Ireland from early removal schemes fails, both on the merits and due to delay. No declaration of incompatibility was issued, and no new precedent was established. The decision reinforces the principle that challenges to primary legislation based on the failure to enact or amend laws are not actionable under section 6(1) of the Human Rights Act 1998, and that limitation rules for judicial review claims are strictly applied.