Different treatment due to liability to deportation not nationality


Re: R (Mormoroc) v Secretary of State for Justice [2017] EWCA Civ 989

The appellant challenged the policy of the Secretary of State in the PSI 52/2011 arguing that it constituted unlawful discrimination on the grounds of nationality in breach of the ECHR, art 14. It related to the difference in treatment between foreign prisoners liable to deportation, and UK national prisoners and foreign prisoners not liable to deportation when considering early release on Home Detention Curfew (HDC). The appeal was dismissed because the difference in treatment was based on the liability to be deported rather than nationality. The Court rejected the contention that the policy was indirectly discriminatory as it was justified and necessary to have a policy to deal with the position of the foreign national prisoner who was liable to deportation but where no decision had been made. It was concluded that alternative “less restrictive measures”, such as a full risk assessment, could not be deemed as less restrictive than the current policy as it would result in the appellant being excluded or ineligible for the HDC scheme regardless.

Hugh Southey QC was involved in this case.