McFarlane, R (On the Application Of) v Secretary of State for the Home Department [2010] EWHC 3081 (Admin)

Case No CO/6580/2010[2010] EWHC 3081 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 20 October 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE KING
Between
THE QUEEN ON THE APPLICATION OF MCFARLANEClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr T Fisher (Instructed By Duncan Lewis) Appeared for ClaimantDr C Staker (Instructed By The Treasury Solicitor) Appeared for Defendant
J U D G M E N T (As Approved by the Court)
[1]This claim for judicial review comes before me as a rolled up hearing pursuant to the order of Deputy Judge Patterson of 4 August 2010. I grant permission and proceed to deal with the substantive claim.[2]The claimant is an immigration detainee, that is to say he is a person detained by the defendant pursuant to her immigration powers under the Immigration Act 1971 pending the claimant's removal to Jamaica. There is in this claim no challenge to the legality of decision to detain itself, which was made in exercise of the defendant's powers under paragraph 16(2) of schedule 2 to the 1971 Act, the claimant being an overstayer in respect of whom removal directions might be made. Although not relevant to this particular claim, I record that there have been difficulties in obtaining an emergency travel document for the claimant, which the Secretary of State alleges is as a result of the non-cooperation of the claimant, but the most up-to-date position I have is that one has now been recently agreed.[3]This is rather a claim which challenges, as against the Secretary of State for the Home Department, the location of the claimant's current administrative detention in a prison as distinct from an Immigration Removal Centre ("IRC").[4]The claimant had been formally given notice of the decision to detain him under the Immigration Act by an immigration officer on 10 January 2009. However, as will be seen, this is a case in which between 9 January 2009 and 4 January 2010 the claimant was in prison in criminal custody serving either a criminal sentence or on remand pending trial on a criminal charge. It was after he ceased to be in custody on that basis that on 4 January 2010 his detention continued as detention by the defendant pursuant to those immigration powers. The claimant has remained, however, in the same prison in which he had previously been kept as a remand prisoner, namely the category A prison HMP Belmarsh. In terms, the claim form seeks to judicially review "the failure to transfer the claimant from a prison to an Immigration Removal Centre at the end of a criminal sentence" and seeks a mandatory order requiring the defendant to transfer the claimant to an IRC. Alternatively, any order is sought which the court deems appropriate, within which Mr O'Callaghan on behalf of the claimant includes an order that the defendant reconsider the claimant's request to be transferred to an IRC.[5]The letters before action and written submissions have also sought to raise the legitimacy of the claimant being detained in a particular category of prison, namely category A, as distinct from the challenge to the detention of the claimant in prison generally. The claim as currently formulated does not by its grounds seek relief expressly directed to this aspect. It was in these circumstances that Mr O'Callaghan, at the commencement of the hearing, sought leave to amend his claim to seek a mandatory order requiring the Secretary of State to consider the appropriate category of prison in which the claimant is to be lawfully detained. This is an application to which I shall return.[6]I turn to the background facts bearing on this claim. The claimant was born in Jamaica on 30 October 1976. On 5 April 2001 he arrived in the United Kingdom at Heathrow Airport and was granted limited leave to enter the United Kingdom as a visitor, but this leave expired on 5 April 2001. On 30 April 2001 the claimant made an out of time application to remain in the United Kingdom but this was refused on 15 June 2001. Thereafter, the claimant did not leave the United Kingdom. He remained as an overstayer. On 1 September 2007 the claimant was arrested by the police, giving a false name, and it appears that he subsequently gave a different false name to medical officials at hospital.[7]On 9 January 2009 the claimant was arrested on suspicion of murder, grievous bodily harm and attempting to pervert the course of justice. On the same day he was charged with the offences of GBH and perverting the course of justice. The murder charge was not proceeded with. On 10 January 2009 immigration officials conducted an interview with the claimant to establish his immigration status, in which the claimant gave "no comment" answers to all questions. On the same day, as already indicated, he was then served with an immigration notice known as ISI51A stating that he was a person in respect of whom removal directions might be made and in respect of whom he was liable to be detained under paragraph 16(2) of schedule 2 to the 1971 Act. He was also given a notice that he was being detained pursuant to these powers, although, again as already indicated, this particular detention was overtaken by his being held on remand in respect of the criminal charges.[8]On 3 April 2009 the claimant was convicted of attempting to pervert the course of justice. The circumstances of this offence were that the claimant gave a false identity to the police in order to avoid being implicated in the murder and GBH charges. He was sentenced to 9 months' imprisonment. This particular custodial sentence came to an end on 29 May 2009 but the claimant remained in criminal custody on remand at HMP Belmarsh pending trial for the GBH charge. This trial was listed for 4 January 2010. On that date the Crown Prosecution Service offered no evidence on the GBH charge. The claimant was accordingly acquitted and a not guilty verdict was entered. Hence, from that time the claimant was in immigration detention pending his removal, under the defendant's immigration powers to which I have already referred.[9]The primary challenge in this case, as I have indicated, is to the failure of the defendant to transfer the claimant from prison to an Immigration Removal Centre at the end of a criminal sentence. The pleaded ground in this respect, maintained before me by Mr O'Callaghan, is that in so detaining the claimant in prison rather than an Immigration Centre, the defendant has continued to act "unreasonably and irrationally and contrary to published guidance". That the defendant had the legal power to detain the claimant in prison pursuant to an exercise of her immigration powers to detain pending removal, is not in issue. Under paragraph 18(1) of schedule 2 to the 1971 Act:
"A person may be detained under paragraph 16 ... in such places as the Secretary of State may direct"
. Such directions have been given in the Immigration (Places of Detention Direction) 2009.

(f) :

"Any hospital, young offender institution, prison or remand centre or, in the case of a person under 18, any place of safety"
. In other words, the primary challenge being pursued is to the lawfulness of the exercise of the power to detain in prison on grounds of unreasonableness, irrationality and a failure to follow published guidance.[10]The reference to published guidance is a reference to the defendant's guidance to UK Border Agency officers in relation to the exercise of various powers, contained in the "Enforcement Instructions and Guidance" (EIG). The relevant guidance as to where Foreign National Prisoners (FNPs) should be detained in exercise of the immigration power to detain, as distinct from guidance as to whether the power to detain should be exercised at all, is to be found in chapter 55.10.1. This deals with the circumstances in which immigration detainees should be held in prison establishments. It is headed "Criteria for detention in prison". Its opening sentence reads:
"Immigration detainees should only be held in prison establishments when they present specific risk factors that indicate they pose a serious risk to the stability of Immigration Removal Centres"
. The guidance then continues to set out a number of risks that would indicate that the detainee should be held in prison accommodation, under the headings of national security, criminality, behaviour during custody, security, control and health grounds. It is to be observed that, as far as criminality is concerned, it identifies: "Those detainees who have been involved in serious offences involving the importation and or supply of class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the sex offender's register".[11]For completeness, I set out the entirety of the opening provision of the guidance:
"Risk which would indicate that detainees should be held in prison accommodation include but are not restricted to the following circumstances - •National Security - where there is specific verifiable intelligence that a person is a member of a terrorist group or has been engaged in/planning terrorist activities; •Criminality - those detainees who have been involved in serious offences involving the importation and/or supply of class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the sex offenders' register (however, in all such cases, consideration should be given to the specifics of the offence and behaviour whilst in custody); •Behaviour during custody - where an immigration detainee's behaviour whilst in either an IRC or prison custody makes them unsuitable for the IRC estate e.g numerous proven adjudications for violence or incitement to commit serious disorder which could undermine the stability of the IRC estates; •Security - where the detainee has escaped from prison, police, immigration custody, escort or planned or assisted others to do so; •Control - engagement in, planning or assisting others to engage in/plan serious disorder, arson, violence or damage; •Health Grounds - where a time served FNP is undergoing specialist in-patient medical care that is not available in the IRC estate. This may include mothers who have given birth recently and who need to continue to benefit from the care of the prison's mother and baby unit. The detainee will be transferred to the IRC estate when medically fit to do so"
. However, it is important to note the opening paragraph of the guidance expressly states that the risks which would justify detention in prison include but are "not restricted to" those that are subsequently set out.[12]I agree with the Secretary of State that the guidance cannot be read as setting out exclusive categories of circumstances, which if they cannot be shown to exist in a given case, must mean that a person cannot be detained in prison. Further, I agree that the guidance taken as a whole makes clear that the decision where to detain a person pursuant to immigration powers is essentially an operational decision reached in liaison with the Prison Service. Any decision to detain in prison should not be regarded as a decision to punish the individual concerned but rather a decision which has the good management of the Immigration Removal Centre in mind and, in particular, with consideration being given to the safety and welfare of other detainees who may never have been convicted of any offence and indeed that of the staff.[13]The guidance continues, in its material parts, as follows:
"When a detainee meets the above criteria DEPMU will refer them to the Population Management Unit (PMU) of the National Offender Management Service (NOMS) who will consider their allocation to a prison"
. I interpose that DEPMU is a unit of the defendant's department whereas NOMS is a unit within the Prison Service under the responsibility of the Secretary of State for Justice. This highlights that which I have already stated, that the decision where to detain is essentially an operational one reached in liaison with the Prison Service.[14]The guidance continues in its material parts as follows: "All cases who have completed a prison sentence will be assessed by DEPMU on an individual basis as to whether they should remain in prison or be transferred to an Immigration Removal Centre. Any individual may request a transfer from prison to an Immigration Removal Centre and, if rejected by DEPMU, will be given reasons for his decisions. More generally, in the interests of maintaining security control in the UKBA Detention Estate as a whole, a cap is placed on the total number of time served FNPs who may be held in the estate at any one time. Where this cap is reached time served FNPs will continue to be held in prison accommodation, even though there may be free spaces within the estate and even though the individuals concerned may not themselves meet the criteria to be held in prison accommodation. Subject to the numerical cap, transfer to an IRC should be considered and effected at the earliest practical opportunity unless the individual concerned meets the criteria to be held in prison accommodation".[15]These concluding paragraphs only emphasise further the nature of the policy underlying the Guidance which has at its heart the maintenance of "security control in the UKBA Detention Estate". As was said by Sales J in Hussein [2009] EWHC 2506 Admin paragraph 121, referring to a like provision found in the earlier guidance which the EIG replaced, namely that in the Operations Enforcement Manual (OEM): "The policy contains no absolute assurance that immigration detention will only ever take place in Immigration Centres rather than prison other than in the circumstances referred to in section 38.10.1".[16]I also agree with the approach of the court in Chahboub [2009] EWHC 1989 (Admin) when, in rejecting the challenge in that case to the individual's detention in a prison in circumstances where his criminality was not of a type expressly referred to in paragraph 55.1.10, it said at paragraph 43: "In the end it must largely be a matter of judgment for those running the Immigration Removal Centres whether they can maintain order and control other detainees while this claimant remains there".[17]These operational considerations are also reflected in the mirror provisions contained under the heading "Allocation and categorisation of those detained under the Immigration Acts" contained in paragraphs 5.1 to 5.4 of the material Prison Service Order, 4630, governing the arrangements within the Prison Service relating to immigration and foreign nationals in prison. It is noteworthy that the opening words of paragraph 5.1 state that:
"Population Management Section liaises with the Immigration Service Population Managers (DEPMU) to determine the most appropriate location for the detainee to be held at the expiry of a custodial sentence, should immediate removal not be possible. A protocol is in place between NOMS and BIA which sets out the criteria for allocation"
. The guidance to the Prison Service in this particular paragraph follows very closely the guidance to the UKBA officers in the EIG. It continues as follows:
"In general terms, immigration detainees will only normally be held in prison accommodation in the following circumstances: National security - where there is a specific verified information that a person is a member of a terrorist group or has been engaged in terrorist activities; Criminality - those detainees who have been involved in the importation of class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the sex offenders' register; Security - where the detainee has escaped prison or immigration custody, or planned or assisted others to do so; Control - engagement in serious disorder, arson, violence or damage, or planning or assisting others to so engage"
. The guidance in 5.1 further continues:
"The above criteria are an initial guide to indicate the suitability of detainees for the IRC estate". and then states: "
It must be recognised that the behaviour of ex FNP detainees will be the key factor and some who would be excluded by the above criteria may be suitably well behaved to make a transfer. It must be assumed that, regardless of the guidelines, any ex prisoner who had been deemed suitable as category D, will be acceptable for the IRC estate. When a detainee meets the above criteria they should be referred to PMS who will consider their allocation to prison. Immigration detainees who fall into one or more of the following groups will remain in prison custody: importation of class A drugs; an offender subject to notification requirements, sex offender registration; life and public protection sentence under the CJA 2003 prisoners; those identified as presenting a risk or potential risk to children as set out in the Safeguarding Children Policy; offenders who need to be managed at MAPPA levels 2 and 3; offenders identified on OAsys as high or very high risk of harm; those subject to protection from harassment procedures under PSO 4400 chapter 2". Paragraphs 5.2 - 5.4 are as follows: "5.2 DEPMU handles both management of the population held in the Immigration Removal Centres and the detainee escorting contracts. 5.3 DEPMU will require a risk assessment to enable them to consider an immigration detainee for transfer from a prison to a removal centre. The prison may therefore on occasion be asked to complete form IS91RA (supplied by the Border and Immigration Agency) in order to allow DEPMU to risk assess the subject's suitability for transfer. The form requests information concerning the subject's behaviour in prison and all relevant information including adjudications should be disclosed. 5.4 Categorisation of immigration detainees is covered in the National Security Framework (NSF)".[18]I turn to the reasons given by the defendant for the claimant's continued detention in prison. They were given to the claimant's solicitors in a letter of 28 May 2010. This was in response to a letter before action from the claimant's solicitors of 21 April which itself referred to an earlier request of 10 March in which the same solicitors had requested that the claimant be transferred to an Immigration Removal Centre. This letter states in its material parts: "The following factors have been taken into consideration by the UK Border Agency in considering your client's case. First, that he was convicted of a criminal offence, that of attempting to pervert the course of justice. This offence was regarded as sufficiently serious by the courts for your client to be given a 9 month prison sentence. It is understood that the circumstances of the offence were that your client gave deliberately misleading information during the course of a murder investigation. Clearly, this was not a trivial matter but an example of risky behaviour which the UK Border Agency is bound to take into account when making decisions of this kind. Secondly, PNC checks were conducted in relation to your client. In addition to the above conviction, the following warning markers appeared on the PNC report received by the UK Border Agency: 'Warnings - Firearms; may posses firearms. Violent; stabbed male in street'. Your concerns about your client have been relayed to the UK Border Agency's Detainee Escorting and Population Management Unit (DEPMU) who have responded as follows: 'We have risk assessed this detainee on 8 January 2010, 21 January 2010, 20 March 2010 and 27 May 2010 for transfer over into the UKBA Estate. Due to the serious firearms related intelligence on him he has been deemed unsuitable for transfer into the UKBA Estate'. Under the Immigration Place of Detention Direction 2008, which is a statutory instrument, prisons are designated places of detention of immigration detainees. The UK Border Agency will transfer time served foreign national prisoners out of prison and into an IRC following a court hearing if:(1) DEPMU has carried out a proper risk assessment;(2) a bed is available in a suitable Immigration Removal Centre. Mr McFarlane has also rendered himself unsuitable for any Immigration Removal Centre by his behaviour whilst in prison (he has adjudications for fighting whilst in prison)".[19]It can thus be seen that the defendant has relied on a number of different factors to justify the claimant's detention in prison. In particular: the circumstances of his conviction for attempting to pervert the course of justice, the results of the checks on the Police National Computer giving the warning markers of possible possession of firearms, violence, "stabbed male in the street", the risk assessment of the DEPMU that the claimant was unsuitable for transfer to the UKBA Estate "due to serious firearms related intelligence upon him", and the adjudication in the prison for fighting with another prisoner.[20]I should add that the nature of the intelligence which has been available to the defendant, has been amplified through a witness statement presented to this court from Grant Richmond who is a Chief Immigration Officer employed by the UK Border Agency. He says at paragraph 3:
"I can confirm that I am informed that the Metropolitan Police regard the claimant as a serious offender with links to gun and drug crime. Regrettably, I am unable to go into further detail. This information was provided by the Metropolitan Police on a confidential basis at the time of the claimant's arrest and detention. However, I am informed that the Metropolitan Police are not in a position to disclose the source of that intelligence for reasons of public safety. What can be disclosed is as follows: (1) The claimant had originally been arrested by the Metropolitan Police on suspicion of murder, GBH and perverting the course of justice. (2) The Crown Prosecution Service did not proceed to trial with the murder and GBH charges but, on 3 April 2009 at Woolwich Crown Court, he was convicted of attempting to pervert the course of justice and sentenced to 9 months' imprisonment. (3) The circumstances of this offence was that he gave a false identity to police in order to avoid being implicated in the murder and GBH charges. (4) I can also confirm that the Metropolitan Police have advised the UK Border Agency that the claimant's attempt to mislead them in this way seriously jeopardised the murder investigation and could have resulted in serious harm to the public. (5) I have also been informed (a) the claimant was never charged with murder; (b) following the claimant's conviction for perverting the course of justice, no evidence was offered to the charge of GBH; (c) the claimant has adjudications for frighting in prison on more than one occasion"
. It is significant that, in paragraph 6, Mr Richmond confirms as follows: "I can also confirm that the wording above is an accurate reflection of what the Metropolitan Police consider to be the claimant's criminality and what they describe as his propensity to use extreme violence".[21]In paragraph 14 of the defendant's summary grounds of resistance, this appears: "Obviously the defendant takes these matters extremely seriously when considering the continued detention of the claimant and the location of his detention. The defendant must also bear in mind that at the hearing of both bail applications the police took this matter sufficiently seriously to wish to appear and give evidence to the immigration judge as to the claimant's activities".[22]The claimant, in his challenge based on irrationality and unreasonableness and the submission that the defendant has acted contrary to published guidance, in effect takes each of the factors set out in the letter of 28 May in turn and seeks to persuade me that none is of sufficient weight to render any decision to detain a rational or reasonable one. Thus, specific complaint is made that the offence of attempting to pervert the course of justice does not fit within the scope of criminal convictions envisaged in the EIG guidance to justify detention. As regards the reliance on the factor that the defendant stabbed a man in the street, this is said to be misplaced since although this entry still may be on the Police National Computer this is stale information since the claimant has now been acquitted of the offence and a not guilty verdict entered following the offering of no evidence. As regards the adjudication of fighting in prison, it is said that this was as a result of the claimant acting in self defence, having been attacked by a fellow inmate envious that the charge of GBH was not being proceeded with and the belief that the claimant might soon be released. As regards reliance on police intelligence, it is said that mere general suspicions cannot appropriately form the basis of keeping an unconvicted foreign national detainee in prison. It was unreasonable for the Secretary of State to rely on such information, being provided in confidence by the police and therefore not being provided either to the claimant or the court.[23]In oral submission Mr O'Callaghan made clear, however, that he was not pursuing any argument that the EIG guidance set out exclusive categories of offending to justify detention. Rather, his principal point was that the presumption has to be that an immigration detainee should only be detained in a prison establishment where he presents specific risk factors that indicate he is unsuitable for an Immigration Removal Centre for reasons of security or control, and that none of the individual factors relied on in this case were of sufficient substance to justify the necessary finding of a serious risk to the stability of an IRC. It was submitted to me that it was, in particular, Wednesbury unreasonable to have taken into account the matters relating to the stabbing of which the claimant had been acquitted.[24]Although Mr O'Callaghan accepted that it was open to the Secretary of State to use confidential intelligence in making any assessment of the risks posed by the claimant and that the claimant could not insist on such information and the sources thereof being made known to himself, his point was that in these circumstances there was a high burden upon the defendant to undertake a proper assessment of that intelligence to ensure it was accurate. The submission was made that what Mr O'Callaghan described as the flawed reasoning of the defendant in respect of the other identified factors, such as the reliance on the stabbing, should give this court reason to be concerned that no such proper assessment had in fact been carried out. Mr O'Callaghan suggests that the fact that the information was provided by the Metropolitan Police to the UKBA at the time of the claimant's arrest for murder and GBH, suggests that the information was of an isolated character. This had not led to any conviction of the claimant and did not represent a multiplicity of information obtained over a period of time and this in itself highlighted the need for the Secretary of State to have exercised caution before relying upon it. The suggestion is made that this court should infer that the requisite degree of scrutiny and caution was not exercised in this case by the Secretary of State.[25]In support of this submission Mr O'Callaghan points to the contents of the monthly progress reports in which the following appears -- I use for convenience the progress report to the detainee of 10 May 2010:
"You are considered to be a serious offender heavily involved in the illegal supply of guns and drugs in South London". "
You are currently detained at HMP Belmarsh. You are considered unsuitable to be moved into an Immigration Detention Centre due to your extensive criminal history". The suggestion was made to me that there may have been an illegitimate mushrooming of the conclusions being drawn from one piece of isolated information.[26]I have not been persuaded by these submissions. I accept the overall submission made on behalf of the defendant that on the material available to her she was entitled to conclude there were here specific risk factors peculiar to the claimant indicating a serious risk to the stability of any Immigration Removal Centre, such that he should be detained in prison. As I have indicated, this must be a matter of judgment for the defendant and I accept that the risk factors for these purposes are not confined to offences of which the detainee has been convicted or to conduct in which he has been engaged in his detention. It cannot be fatal, in my judgment, to the rationality of any decision to detain in prison that the risk factors relied on are not those expressly enunciated in the EIG guidance. Further, being an operational judgment concerned with the stability of Immigration Centres, I accept that the factors the defendant can take into account are not limited to past conduct of a person which has been proved to any particular standard. The fact a person has been acquitted of a charge or a charge has not been proceeded with, which may be for any number of reasons, does not mean that the information leading to the charge cannot be taken into account. I also accept that the defendant is entitled to look at circumstances as a whole. They are to be looked at cumulatively and it is not necessary for each individual factor to be sufficient on its own to justify detention in prison.[27]Thus in this particular case first, in my judgment, the defendant was entitled to take into account the circumstances of the conviction of the offence of perverting the course of justice, even though the offence was not expressly enumerated in chapter 55.10.1 of the EIG. Had this factor been the sole reason relied on by the defendant there may have been an issue as to its consistency with the policy, but in principle, given it has been taken into consideration with circumstances as a whole, there can be no reason why this conviction should be excluded from that consideration, merely because it is not one of the specifically identified offences.[28]With regard to the stabbing, the fact remains that there was sufficient evidence to charge the claimant with the offence of GBH and that it was in the public interest to do so. True, the Crown Prosecution Service offered no evidence but this could have been for a variety of reasons. Although the claimant is entitled to be regarded as innocent of the GBH charge, the defendant is entitled, in my judgment, to bear in mind that such evidence existed in the first place, when making a judgment about the claimant's propensity to violence and the risk he may pose to other immigration detainees. In taking this into account, I do not accept that the defendant assumes the claimant to be guilty of the offence.[29]The defendant must also have been entitled to take into account that the claimant had an adjudication for fighting. Again, it was only one matter taken into account with the other matters, but there was no reason to have excluded it from consideration. The adjudication is not in itself a matter of dispute and, in my judgment, the defendant is not required to look behind the adjudication in the sense of deciding whether it was justified. In any case, it is to be noted that no evidence has been produced by the claimant in support of his assertions as regards the circumstances leading to this particular adjudication.[30]Significantly, the defendant also had the information, albeit on a confidential basis, that the Metropolitan Police regarded the claimant as a serious offender with links to gun and drug crime, and with a propensity to extreme violence. In my judgment, it would be quite wrong to hold that the defendant was required to disregard this matter merely because the claimant has no convictions for such matters or because the Metropolitan Police felt unable to disclose their sources for reasons of public safety. The fact the claimant has no convictions for firearm offences cannot be decisive, nor the fact that he will not have lawful access to firearms in an Immigration Removal Centre.[31]I repeat that the decision to detain in prison is not taken in order to punish the claimant. It is done to ensure stability within Immigration Removal Centres.[32]Nothing in the material before me suggests that the defendant did not approach and scrutinise this information in a proper and careful way. Nothing suggests that the information had the weaknesses which Mr O'Callaghan speculates may be the case. In my judgment, it was not unlawful for the Secretary of State to use this information as the decisive factor, when taken into account with the other factors to which she was entitled to have regard, in making the decision to detain in prison, or rather in making the decision not to transfer the claimant to an Immigration Removal Centre at the end of his criminal sentence but to continue the detention in prison.[33]For all these reasons I reject the claim based on the primary ground that the Secretary of State has made an unreasonable and irrational decision in determining not to transfer the claimant to an IRC and to detain the claimant in prison, or that the Secretary of State has acted contrary to published policy. I should add that there is nothing in the material before me that the Secretary of State has in any way acted in bad faith.[34]I turn to the matter concerning the claimant being detained in a category A prison. In paragraph 21 of the grounds of claim this appears:
"The consequences of his detention at HMP Belmarsh is that the claimant is required to abide by the regime applied to sentenced prisoners rather than the regime that should be applied to unconvicted prisoners. Further, he is being held in category A conditions with prisoners regarded as requiring a high level of security restraint. He is required to share a cell with and associate with persons who have been convicted of serious criminal offences"
. Mr O'Callaghan in oral submission referred me to the various provisions in the Prison Rules and the Prison Service Orders relating to the categorisation and allocation of prisoners and in relation, in particular, to whether they fell into category A, B, C or D. For example, in the Prison Service Order 0900 the security category of category A is defined as:
"Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely escape might be, and for whom the aim must be to make escape impossible"
. At 1.41 of this particular order, under the heading "Process of categorisation - unsentenced prisoners", one reads: "All prisoners on remand awaiting trial, or convicted and awaiting sentence, other than those provisionally categorised A, are to be placed in category U; unclassified. Category U prisoners will normally require category B accommodation but there is no reason in principle why an unconvicted or unsentenced prisoner, other than potential or provisional category A prisoners, could not be held in a category C establishment if suitable facility exits and if adequate information is available to suggest that category B accommodation is not needed for that prisoner. Such decisions must be made by Governors and approved by Area Managers".[35]I was also referred to the specific provisions of the Prison Rules 1999. Under the heading "Classification of prisoners", Rule 7(2) says: "Unconvicted prisoners(a) should be kept out of contact with convicted prisoners as far as the Governor considers it can reasonably be done, unless and to the extent they have consented to share residential accommodation or participate in any activity with convicted prisoners; and(b) shall under no circumstances be required to share a cell with a convicted prisoner".[36]The submission is made that although these various orders and rules are prison rules and orders directed to the categorisation and management of conventional prisoners, nonetheless, by analogy, they should apply to someone in the position of an immigration detainee detained in prison although not convicted of any offence, pending removal. The submission is made that in this particular case having regard to the material which was before the Secretary of State, it was in effect a wholly unreasonable and irrational decision to place the claimant in a category A prison and, furthermore, it was irrational and unreasonable to place him in the conditions whereby as the claimant claims, he is required to share a cell and associate with persons who have been convicted of serious criminal offences.[37]In the letter before action of 21 April 2010 it is said on behalf of the claimant that he is: "Not only distressed at such unlawful treatment but he has fears for his safety from prisoners with long sentences who have nothing to lose".[38]I should record that there is no evidence before this court to support any of these assertions of fact as to the conditions in which the claimant is being held, other than the fact that he is being held in a category A prison. Be that as it may, the primary response made by the Secretary of State to this aspect of the claim, is that the categorisation of a detained person while in prison and his allocation to a particular category of prison, and matters relating to the circumstances in which he is held in prison, including in any particular cell, are not matters for the defendant Secretary of State at all. It is, it is said, a matter for the Secretary of State of Justice who is responsible for the Prison Service.[39]At paragraph 34 of the detailed grounds of resistance, the following appears:
"Where an immigration detainee is detained in a prison, the categorisation of the prison in which he is kept and the regime under which he is kept are matters falling within the responsibility of the Secretary of State for Justice rather than the Secretary of State for the Home Department"
. In other words, the response of the Secretary of State to this aspect of the claim is that it is misconceived and is directed at the wrong defendant.[40]There is support for this stance in Hussein, the decision of Sales J to which I have already referred, where he held at paragraph 123:
"Alleged breach of the Prison Rules - the claimant says that, in the initial phase of his immigration detention in 2004, he remained in prison and whilst there was detained in a cell with convicted prisoners in breach of the applicable Prison Rules. Mr Payne submits that this complaint ought properly to be directed against the Prison Governor rather than the Secretary of State. I agree. The claimant is not entitled to relief against the Secretary of State in relation to this complaint."
[41]Mr O'Callaghan submits that this approach is too simplistic, that in fact the Secretary of State cannot absolve herself of all responsibility for the category of prison in which the claimant is detained pursuant to her decision, albeit one lawfully made, to detain him in a prison. It is pointed out that the Secretary of State has the ultimate responsibility for the decision to detain an immigration detainee and for the decision to detain in a prison as such. I am reminded that the Secretary of State has the power, which cannot be overridden by the Prison Service, to order that the claimant as an immigration detainee be transferred from prison to an Immigration Removal Centre or be released into temporary admission in the United Kingdom. The authority upon which the defendant relies on is countered, says Mr O'Callaghan, by the decision of the High Court (HHJ Vosper QC) in Chahboub [2009] EWHC 1989 Admin where a contrary view was taken. The court's reasoning is to be found at paragraph 44 to paragraph 50 of the judgment in which the court made a declaration, in judicial review proceedings against the Secretary of State for the Home Department, that the regime under which an immigration detainee was being kept in prison was unlawful. At paragraph 50 the court said this: "On balance, I prefer the argument of Mr Denholm on this point. I accept that the Secretary of State for Justice may also have breached the human rights of the claimant in the respects I have indicated, but I am not satisfied the Secretary of State for the Home Department is not thereby absolved of responsibility. Accordingly, on this point I am prepared to make a declaration of the claimant's rights under Article 5 have been infringed by the manner of his detention at Wandsworth between 20 December 2008 and 15 April 2009, and direct there be an inquiry as to appropriate damages in respect of that treatment".[42]I do not consider that it is necessary for me to resolve this particular dispute. I will allow the claimant to amend his claim to seek the relief asked for by Mr O'Callaghan, that is to say a mandatory order requiring the Secretary of State to consider the appropriate category of prison in which the claimant is to be lawfully detained. However, on the evidence before me I do not consider that any relief should be granted, irrespective of whether or not the defendant Secretary of State does have some residual responsibility and liability for precisely where within the prison estate and the conditions in which an immigration detainee is being kept.[43]In principle I agree with the defendant and with Sales J that normally the question of the categorisation of prison in which an immigration detainee is to be kept -- once the defendant has lawfully decided that he be detained in prison as such and is not to be transferred to an IRC -- and the question of the regime under which an immigration detainee is kept while in prison, including particular issues as to the nature of the cell in which and the type of person with whom he is kept, must be matters for the operational decision of the Prison Service and of the Prison Governor, and hence are matters falling within the responsibility of the Secretary of State for justice rather than the present defendant. These are all matters governed by the Prison Service Orders and the Prison Rules which are directed to those responsible for the running of the prison service and the prisons and not to those responsible for excercising the powers of detention of the present defendant. It would not in any event be open to the Secretary of State for the Home Department to direct or order the Prison Service to detain an immigration detainee in a particular category of prison or indeed a particular named prison. As I have already noted the relevant guidance of the defendant (the EIG) provides that where the defendant's DEPMU considers that a detainee meets the criteria for detention in prison, the DEPMU will refer the detainee to the Population Management of the Prison Service (NOMS) and it is that unit of the Prison Service who will consider the allocation to a prison. Similarly it is to be noted that the material Prison Service Order guidance to which I have already referred, provides at 5.4 that the categorisation of immigration detainees "is covered in the National Security Framework (NSF)". As I understand the position the NSF is a creature of the Prison Service under the responsibility of the Secretary of State for Justice.[44]This all said, I consider -- without having to decide the matter -- that there might be circumstances where the evidence points so overwhelmingly to the conclusion that the particular category of prison and the conditions in which an immigration detainee is being kept in prison is so obviously harmful and prejudicial to the health and welfare of the detainee with no justification in rationality, that a claim might lie against the defendant Secretary of State for the Home Department for in effect not ordering the detainee's transfer out of prison and might give rise to relief on human rights grounds of the kind envisaged in Chahboub. However in my judgment, this is not this case and there is no evidence to support such a conclusion in this case. Certainly there is nothing to suggest as against the present defendant that the immigration detention of the claimant in a category A prison such as Belmarsh where the claimant had been detained when in criminal custody, is unlawful having regard to the intelligence available to the defendant to which I have already referred, that the claimant is involved in drug and gun crime. Nor is there any evidence before this court to support the complaints as to the conditions in which the claimant is currently being kept.[45]For all these reasons, the circumstances of this case do not in my judgment justify any relief under this second head of claim.[46]I should add, before concluding this judgment, that, as I have already indicated, in 5.1 of the Prison Service Order of 4630, dealing with the allocation and categorisation of those detained under the Immigration Acts, one of the groups of persons of immigration detainees who will remain in prison custody include:
"Offenders who need to be managed at MAPPA levels 2 and 3"
. MAPPA being the reference to the Multi-Agency Public Protection Arrangements. At one stage in these proceedings the defendant sought to submit that as the MAPPA assessment had yet to be carried out, that was a complete answer to this claim. This particular point has not been pursued before me. If it had been, the claimant would have pursued the argument that the defendant had been less than diligent in carrying out that assessment and had unreasonably delayed. However, I need to take the matter no further. Regardless of the MAPPA assessment, the Secretary of State has applied her mind to the decision where to detain the claimant and has given the reasons for the decision to detain in prison in the letter of 28 May. The MAPPA point is redundant.[47]I should also add that a point pursued on the papers is of no substance, namely that no adequate reasons have been given by the Secretary of State for the decision to detain in prison. In my judgment, for the reasons I have already given, entirely clear reasons have been given.[48]For all these reasons, this claim is dismissed.[49]DR STAKER: I am obliged, my Lord. In the circumstances, I would seek a costs order in favour of the defendant. My understanding is that the claimant has been publicly funded throughout, in the circumstances the costs order sought would be the usual order, as I understand it, in publicly funded cases. I understand there is a settled wording of that order now, although I am not in a position to state exactly what it is, it is to the effect that the costs are not to be enforced without the leave of the court.

MR JUSTICE KING: Mr Fisher?

[51]MR FISHER: My Lord, I cannot resist the order for costs. In my submission, that is the correct approach.[52]MR JUSTICE KING: Well, I will make the order for costs in favour of the defendant but not to be enforced without leave of the court. If there is a more appropriate form of order, I am sure counsel will notify the court.[53]MR FISHER: My Lord, I also seek the additional normal order in these circumstance, that is that the claimant's legally aided costs go to detailed assessment.

MR JUSTICE KING: Certainly.

[55]MR FISHER: And I do have an application further to appeal. Your Lordship identified the intelligence as a decisive factor on both grounds and, in my submission, it is an important question to consider the extent to which untested and unknown allegations can be used against an immigration detainee to make the decision to detain in prison.[56]MR JUSTICE KING: Very good. I understand your submission but I do not grant you leave.[57]MR FISHER: I am grateful. My Lord, a further request, given the length of the judgment would it be possible to extend time for renewing that appeal to 20 days from the date of the transcript?

MR JUSTICE KING: Certainly.

[59]MR FISHER: I am grateful, my Lord.

Cited in 1 later judgment