Case No: C1/2010/2652
Neutral Citation Number: [2011] EWCA Civ 559
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE LANGAN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 13 April 2011
Before:

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR ANTHONY MAY)
LORD JUSTICE SULLIVAN
and
LORD JUSTICE GROSS

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Between:

	THE QUEEN ON THE 
APPLICATION OF OMOREGBEE

Applicant	
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SECRETARY OF STATE FOR JUSTICE  

Respondent	
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(DAR Transcript of 
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Mr Matthew Stanbury (instructed by Grayson Willis Bennett Solicitors) appeared on behalf of the Appellant.

Mr Simon Murray (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment
(As Approved by the Court)
Crown Copyright ©
Sir Anthony May:

1.	We are told that in and around Leeds it is quite common for problems to arise which come before the Administrative Court in Leeds about the classification of foreign national prisoners who are liable at the end of their sentence to be deported.  We are not quite sure why this would be so, but HHJ Langan QC plainly considered it was the case when he made the decision in the case of the appellant now before the court in the High Court in Leeds on 22 October 2010.  The appellant was -- and so far as we know still is -- a convicted prisoner liable for deportation and the question arose during the course of his prison sentence whether his previous categorisation as a category C prisoner should be re-classified to category D, category D being that suitable for open prisons and the like.  

2.	The short history of this is that the appellant was born in February 1976.  He went to Germany in 1997 and arrived in the United Kingdom from Germany on a residential visa in 2003.  In 2007 he committed some offences of obtaining property by deception and was apprehended but released on bail pending his trial.  It is of some significance historically that when he was on bail he made no attempt at concealing his whereabouts or absconding.  On 20 August 2009 he was sentenced for these offences to three years’ imprisonment by Coventry Crown Court.  His behaviour in prison was very good and he was not subject to any disciplinary proceedings.  He was assessed as a low risk of re-offending.  So it was that he made submissions in February 2010 that his prison category should be reduced from C to D.  On 5 March 2010 the Secretary of State’s Deputy Prison Governor at HMP Hewell decided that he should not be re-classified from C to D and accordingly the appellant issued judicial review proceedings claiming that that was unlawful and irrational.  Permission to bring proceedings was granted by HHJ Grenfell and, as I have said, the proceedings came before HHJ Langan QC in October 2010.  

3.	The appellant before the judge had two essential grounds for judicial review.  The first criticised unlawfulness of the Prison Rules and Regulations (to which I shall refer in a moment) relevant to the re-classification of prisoners in his position.  The second was an irrationality challenge to the particular facts of his case.  HHJ Langan QC gave permission to appeal, observing that these cases were quite frequent in Leeds, but in the intervening period the appellant has completed the custodial part of his sentence and has been released.  This occurred, so we understand, on 18 February 2011 and accordingly the appeal has, as is agreed, become academic.  This court is not in the habit of deciding appeals that are academic but we have taken the view in this case that we should at least entertain the first ground of appeal, that which is general to the Prison Rules and Regulations, but we have declined (without too much encouragement in the other direction from Mr Stanbury) to look at the individual circumstances of this appellant, that is to say to consider the second ground of appeal because that is entirely academic and would be of no assistance to the decision in future cases.

4.	The legislation and rules, relevantly, include the following.  The Prison Act 1952 has, as its section 47(1), the following:
“The Secretary of State may make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein.” 

5.	Prison Rules 1999 have, as rule 7(1), which is made under section 47(1) of the 1952 Act, and under the heading “Classification of Prisoners”:
“Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3.”

6.	Until July 2002 those foreign nationals in prison who were liable to deportation had no opportunity, so we understand, of being allocated to category D.  We have not looked into the detail of that but we have had drawn to our attention – as had the judge – PSI 35/2002, paragraph 3 of which provided:
“This policy change removes the blanket ban on the categorisation and allocation to open conditions of prisoners subject to enforcement action under the Immigration Act.   These prisoners must now be risk assessed as to their suitability for categorisation and allocation to open conditions on an individual basis in the same way as all other prisoners. Deportation status will remain a major factor in the risk assessment process, but it may be taken into account only in so far  as it is might be indicative of the likelihood of abscond and not as a determinative factor precluding allocation to open conditions.”

7.	The categorisation of prisoners generally is covered by PSI 03-2009, paragraph 14 of which, under the heading “Re-categorisation to Category D” has the following:
“It is essential that prisoners must be assessed as trustworthy and sufficiently low risk before being allocated to open conditions. In making the decision, governors must keep in mind the particularly challenging management issues associated with the low physical security and supervision levels of the open estate and that the environment and regime opportunities available in open prison may not be suitable for a prisoner who is still many years away from possible release.”

8.	Mr Murray explains to us that that is the general provision under which re-categorisation to Category D takes place.  PSI 35-2002, which Mr Stanbury says would be entirely appropriate for a decision whether a foreign national liable to deportation should or should not be reclassified in Category D, has now been overtaken by PSO 4630 under the heading “Security Classification Policy and Allocation to Open Conditions”.  This includes the three following excerpts from paragraph 14:
“14.1  The overriding purpose of security classification is to ensure that prisoners are retained in custody with a level of security which is consistent with the need to prevent escape and to protect the public.
...
14.3  Before a foreign national prisoner who meets the deport criteria and for whom a CCD2 has been sent, is classified, the individual risk must be assessed on the assumption that deportation will take place, unless a decision not to deport has already been taken by the BIA; a decision which must be recorded in the prisoner’s record.”

I interpose to say that Mr Stanbury does not argue with the suitability of that assumption.  Then paragraph 14.4, which is the burden of his submission, 
“14.4  Each case must be individually considered on its merits but the need to protect the public and ensure the intention to deport is not frustrated is paramount.  Category D will only be appropriate where it is clear that the risk is very low.”

9.	Mr Stanbury had a submission which he advanced before the judge and which he advances without enthusiasm before this court that paragraph 14.4 (perhaps paragraph 14 in its entirety so far as it applies to foreign national prisoners) is not a paragraph which Rule 7(1) of the Prison Rules legitimises.  The argument before the judge included, as I understand it, the proposition that the wording of Prison Rule 7(1), “Prisoners should be classified in accordance with any directions of the Secretary of State having regard to their age …” and so forth, only permitted the Secretary of State to give directions in relation to the matters which followed in Prison Rule 7(1).  I have no hesitation, as HHJ Langan did not, in rejecting that submission.  It seems to me perfectly plain that that, in accordance with any directions of the Secretary of State, enables the Secretary of State to make directions which are appropriate to the classification of prisoners and that the following list of possibilities is a list of possibilities, but one which is not exclusive.

10.	Mr Stanbury’s main criticism of the provisions of paragraph 14 of PSO 4630 concentrates on the word “paramount” and, as I understand his argument, he submits that this in effect seeks to withdraw any discretion or individual consideration that may and ought to be brought to bear on the individual decision as to whether there should be re-categorisation to Category D.  He submits that the wording of this and the use of the word “paramount” indicates that the proposition that deportation will be frustrated is not the relevant business of the Prison Service, who are concerned only with preventing escape and protecting the public.  He submits that, accordingly, the provision is unlawful and he submits that the first part of paragraph 14.4 does not cure the second.  

11.	Again I have no hesitation in rejecting that submission.  “Paramount” in the context is not saying that the fact that a foreign national liable for deportation might escape is overridingly decisive.  It is not saying that.  In the context it is relevant both to the need to prevent escape and the need to protect the public, but it is not a consideration which obliterates individual merits.  In my judgment that is quite clear not only from paragraph 13, where there is emphasis on the individual risk, but also from the opening words of paragraph 14.4, which says in terms that each case must be individually considered on its merits.  In the context, in my view “paramount” means really no more than “important” with a degree of emphasis on the importance that a risk of deportation has on the questions which should concern a prison governor making this decision.

12.	Mr Stanbury next submits that this is irrational because foreign offenders are habitually not deported immediately after the end of their sentence and many of them are habitually not even detained during any period during which the Secretary of State is considering whether to make a deportation order or not.  He submits that the policy as to re-categorisation fails to reflect that fact.  In my judgment Mr Murray is entirely right to say that this is a matter which is irrelevant.  What the Secretary of State does after the prisoner has been released is not a matter for the Prison Service but for the Secretary of State and the immigration authorities.  The way in which the Secretary of State deals with these people once they have been released is not a reason for making a different re-categorisation decision while they are still in prison.

13.	Mr Stanbury thirdly submits that the way in which the order is expressed unlawfully applies a different test for those who are going to be deported from those who are not.  He submits that this is the only instance where this special circumstance is regarded as irrelevant and that the very use of the expression “where it is clear that the risk is very low” indicates that this particular class of prisoner is being put unlawfully in a separate and more difficult category.  In my judgment this is unpersuasive.  This is indeed a class of person who, by virtue of their deportation position, necessarily have an added point which needs to be taken into account in their cases as to whether they should be reclassified or not.  I am persuaded that there is indeed no variable test but that the test in paragraph 14.1 of PSI 03-2009 is one which applies to all prisoners, including those under consideration in this case.

14.	Accordingly in my judgment Mr Stanbury’s criticisms of paragraph 14.3 in particular of PSO 4630 are of no force.  I see nothing irrational or unlawful in that paragraph taken in its context and in my judgment therefore the first ground of appeal, which is the only one we are going to consider, should fail.

Lord Justice Sullivan:

15.	I agree.

Lord Justice Gross:

16.	I also agree.

Order: Application dismissed on first ground of appeal