England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS

		The Court House 1 Oxford Row Leeds LS1 3BG
		22 October 2010

JUDGE LANGAN:

Introduction

1. The claimant is a serving prisoner in Category C. In these proceedings he asks the court to quash a decision made by a deputy prison governor on behalf of the second defendant to the effect that he should remain in Category C and not be reclassified downwards to Category D. Such challenges are commonly made in this court: the distinctive feature of this case is that the claimant attacks as unlawful, not just the decision itself but what is said to be the policy which informed the decision. That policy relates to the categorisation of prisoners who are foreign nationals liable to deportation.

Narrative

2. More often than not, the underlying facts in cases of this kind are straightforward and uncontroversial. This case is no exception.
3. The claimant is a Nigerian national. He was born on 1 February 1976 and is accordingly 34 years of age.
4. The claimant arrived in this country from Germany and has been living in the United Kingdom since 2003. He was granted a residential visa for 5 years in October 2003, apparently on the basis of his wife's nationality, which is German. They have a 2 year old child, who was born in this country, and who is believed to share the mother's nationality. The family lived in the Coventry area and I understand that the wife and child are still there.
5. In 2007 the claimant applied for indefinite leave to remain in the United Kingdom, but the application was put on hold because he was then being investigated for possible offences of fraud. He was, in addition to being employed by Tesco, running his own business, which related to the distribution of cosmetics. The only information which I have about the allegations comes from the claimant's own evidence: he says that they related to the use of stolen credit cards to purchase items in the course of the business.
6. In due course a prosecution was started, the claimant was convicted of three offences of obtaining property by deception, and on 20 August 2009 he was sentenced to a term of 3 years imprisonment at Coventry Crown Court. These were first offences, and the claimant had been on bail throughout the investigation.
7. In view of the length of his sentence, the claimant is liable to automatic deportation. It appears that he has not yet been served with notice of intention to deport but that, if such a notice is served, he will launch an appeal against deportation.
8. The claimant was at the time of the decision which is challenged in these proceedings held in Her Majesty's Prison Hewell as a Category C prisoner.^[1] His automatic release date is 18 February 2011.
9. On 15 October 2009 the claimant was the subject of an OASys report. He was assessed as presenting a low risk of reoffending.
10. On 19 January 2010 the prison informed the claimant that, due to his low risk level, he would not be the subject of any further OASys assessments. His sentence targets do not include any offending behaviour programmes.
11. In February 2010 the claimant was due for a six-monthly categorisation review. He applied for recategorisation downwards to Category D, and his grounds for doing so were set out in a letter dated 22 February from his solicitors to the prison.
12. The prison sought the observations of the UK Border Agency on the application for recategorisation. These observations were contained in a letter dated 10 February 2010. I should mention just one point from the letter, as reference was made to it in the course of submissions for the claimant. In answer to the question about close ties which a prisoner might have in the United Kingdom, the writer replied "He has a wife and child in the UK."
13. The material relating to the claimant's conduct in prison was excellent. There were no control issues and he had not had any adjudications. His Personal Officer wrote in these terms:

Mr Omoregbee's behaviour… has always been exemplary. He complies with all prison rules and regulations. I would recommend him for open conditions.

The assessment dealing with resettlement issues stated that the claimant would live with his family after release "if immigration allow leave to stay."

14. On 5 March 2010 Ms Deborah McKay, the deputy governor of the prison, decided that the claimant should remain in Category C. The reasons given were:

Excellent reports however deportation status means there is a potential for abscond.

15. This decision was challenged by the issue of these proceedings on 9 June 2010. On 3 August 2009 permission to proceed with the claim was granted on the papers by His Honour Judge Grenfell.
16. Ms McKay has provided a witness statement, from which it appears that she has extensive experience of recategorisation work, dealing with 40 or 50 reviews a month. Her statement contains the following passages:

6. All recategorisation reviews consider individual circumstances for each offender and risk of re-offending, risk to the public and risk to the good order of the establishment are considered. In the case of foreign national prisoners the risk as per PSO 4630 the need to "ensure that the intention to deport the prisoner is not frustrated is paramount", whilst still recognising this need to be part of the overall assessment.

7. In the case of the claimant, as was standard practice, a dossier of information was provided…

8. Mr Omoregbee had positive reports in all areas. There were no security concerns, he was using his time constructively and presented a low risk of harm to the public and a low risk of reoffending. According to PNC this was Mr Omoregbee's first time in custody and first offence. All this indicated a potential suitability for open conditions.

9. However, a report from UKBA confirmed that Mr Omoregbee was to be deported. Although it was acknowledged that he had been co-operative with the agency and that he had family in the UK, it was of concern that his offence was deceptive in nature. There were also concerns that due to his wife and child living in the UK, there was a possibility of abscond to ensure he remained here and with them. For that reason it was decided that in order not to frustrate the intention to deport and to minimise the risk of abscond that Mr Omoregbee would remain Category C at this stage.

Legislation and other relevant material

17. By section 47(1) of the Prison Act 1952

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.

18. The Prison Rules 1999 have been made pursuant to section 47(1). By rule 7(1)

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.

By rule 3 that purpose is "to encourage and assist [convicted prisoners] to lead a good and useful life."

19. The defendant gives directions about the operation and management of prisons in Prison Service Orders (PSOs) and Prison Service Instructions (PSIs).
20. The general principles according to which prisoners are categorised are well known. They "must be categorised objectively according to the likelihood that they will seek to escape and the risk that they could pose should they do so" (PSO 0900, paragraph 1.2.1). A prisoner "must be placed in the lowest possible category consistent with the needs of security and control" (PSO 0900, paragraph 1.2.2).
21. PSI 35/2002 came into force on 18 July 2002, and permitted something which had not previously been allowed, namely the allocation to Category D of prisoners who are liable to deportation. By paragraph 3 of PSI 35/2002

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 will remain a major factor in the risk assessment process, but it may be taken into account only in so far as it might be indicative of the likelihood of abscond and not as a determinative factor precluding allocation to open conditions.

22. Finally, there is PSO 4630, which was issued on 11 January 2008 and is entitled Immigration and Foreign Nationals in Prison. Paragraph 14 is highly material for present purposes.

Security Classification Policy and Allocation to Open Conditions

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 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...

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.

Discussion

23. Mr Stanbury, counsel for the claimant, made a two-pronged attack on the decision to retain his client in Category C. First, he said that the policy encapsulated in PSO 4630, that "the need to… ensure the intention to deport is not frustrated is paramount", is unlawful as being ultra vires the powers of the defendant under rule 7(1) of the Prison Rules. Secondly, he said that the decision is contrary to the weight of the material before the decision-maker and is irrational.

First issue: ultra vires

24. Mr Murray, counsel for the defendant, expressed serious reservations about the court's dealing with the ultra vires submission when the real challenge should be limited to the decision as to categorisation. It is, however, fair to observe that the question of ultra vires was expressly raised in the claim form, although without seeking an appropriate declaration as to the lawfulness of the policy. As the point has been in issue from the beginning, it seems only right that I should deal with it.
25. The point is really quite a short one. The submission for the claimant is that the criteria for categorisation are exhaustively defined in rule 7(1) of the Prison Rules, that the defendant failed to have regard to those criteria in issuing his directions as to the categorisation of foreign nationals, and that the need to prevent the deportation process being frustrated is irrelevant to the question of categorisation. Mr Stanbury accepts that liability to deportation may be taken into account in assessing the risk of abscond: but he submits that PSO 4630 goes too far in that it requires the decision-maker to act with a view to enabling the Secretary of State for the Home Department to deport the prisoner.
26. I do not agree with this submission.
27. The opening words, which express what I would call the primary thrust, of rule 7(1), is that prisoners are to be classified "in accordance with any directions of the Secretary of State." The words which follow, "having regard to their age" etc. to the end of the rule, specify matters which have to be taken into account when a prisoner is being categorised. I do not, however, read the rule as requiring the court to hold that those words define comprehensively all matters which the defendant may take into account, to the exclusion of anything else which he may reasonably consider relevant.
28. If one is unable to read rule 7(1) in the constricted manner for which Mr Stanbury contends, then matters fall into place quite simply. Paragraph 14 of PSO 4630 is a direction of the Secretary of State given pursuant to rule 7(1). It does not, in my judgment, incorporate some assumption by the defendant of functions which belong to another minister. It is doing no more than emphasising that the risk of abscond, which is a consideration relevant to every categorisation decision, has a heightened importance when the prisoner is liable to deportation, and that in such cases the risk must be examined with particular care. But, as is made clear in paragraph 14 itself, the prisoner must be assessed as an individual so that deportation status itself cannot be determinative.
29. Accordingly the challenge to the policy fails.

Second issue: the decision

30. The attack on the decision itself rests on two grounds.
31. The first point which is made is that the decision is unbalanced: that is to say that the weight of the material in favour of a downwards recategorisation was such that Ms McKay's conclusion was one at which no reasonable decision-maker could have arrived. This is effectively a Wednesbury unreasonableness submission.
32. The second point is that the conclusion is irrational in that Ms McKay treated as a negative factor something which was in fact a positive consideration, and had been so regarded by UKBA: namely, that the claimant had a wife and child in the United Kingdom.
33. Neither Wednesbury unreasonableness nor irrationality is easy to establish, and in my judgment the claimant has not been able to surmount either hurdle.
34. Wednesbury unreasonableness. It is true that the claimant's conduct in prison and the low risk of reoffending and harm to the public on release made him a strong candidate for Category D – as was, indeed, recommended by his Personal Officer. But there were considerations the other way: his liability to deportation, the deceptive nature of his offending (which goes to ingenuity should he be tempted to abscond, and (on the view taken by Ms McKay) his having a wife and child. It may be that other, perhaps a majority of other, decision-makers would have given the claimant the downwards recategorisation which he was seeking, but that is as far as the case on unreasonableness goes. It is not sufficient as a basis for overturning the decision of a highly experienced deputy governor who, as I see matters, did not attach undue weight to the adverse and relevant considerations which I have just mentioned.
35. Irrationality. The presence of family in the United Kingdom could be regarded as something which makes abscond less likely, on the basis that even a person liable to deportation would want to return to, and stay in, his family home; or as something which provides him with a further incentive to disappear, with or without them, into the community. There is nothing irrational in either view, whether generally or in the particular circumstances of this case. The view to be adopted was a matter for Ms Mckay. I do not think that her decision is infected by some error as to the views of UKBA. What Ms McKay did was to reiterate a matter of fact, the presence of the wife and child in the country, and attach to that fact her own view as to its bearing on the decision which she had to make. That is something which she was not merely entitled, but bound, to do.

Conclusion

36. It follows from what I have said that the claim must be dismissed. As Mr Murray rightly said, this is in essence a very ordinary case without any of the special features which have, in other factual situations, resulted in a successful challenge by a foreign national to a decision to keep him in Category C.^[2]

Note 1   He is now held at HM Prison Stafford.    [Back]

Note 2   |See Manhire, CO/5312/2009,[2009] EWHC 1788 (Admin): Mr Manhire was a citizen of Zimbabwe who was liable to deportation, but the government had suspended deportations to that country; andAbbas, CO/4361/2010: Mr Abbas had won his appeal against deportation on human rights grounds in the First Tier Tribunal so that, although there might be a further appeal to the Upper Tribunal, he was at the material time not a person liable to deportation.     [Back]