Abbas, R (On the Application Of) v Secretary of State for Justice [2010] EWHC 3790 (Admin)

Case No CO/4361/2010[2010] EWHC 3790 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Tuesday, 28 September 2010
West Yorkshire
LS1 3BG
Before
HIS HONOUR JUDGE LANGAN QC(Sitting as a Judge of the High Court)
The Queen on the Application of
Between
SAEED ABBASClaimantSECRETARY OF STATE FOR JUSTICEDefendants
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Matthew Stanbury (instructed by Messrs Grayson Willis Bennett) appeared for Claimant.Mr Simon Murray (instructed by the Treasury Solicitors) appeared for Defendant.
Judgment
[1]The claimant is a serving prisoner. The defendant is the Secretary of State for Justice. By the claim form which was issued on 7 April 2010 the claimant challenged decisions of the defendant(1) to upgrade his security classification from Category D to Category C and(2) to refuse to grant him release on temporary licence (ROTL). For reasons which will become apparent in the course of this judgment, the claim in respect of (1) has been rendered academic by supervening events, but the proper approach to the claimant's security classification remains in issue between the parties.[2]I granted permission to apply for judicial review on consideration of the papers on 18 May 2010.

Narrative

[3]The claimant is a Pakistani national. He entered the United Kingdom in the year 2000. He was granted indefinite leave to remain in 2001 by virtue of his marriage to a British national. The claimant and his wife have three British-born children. The family is resident in the Bradford area.[4]On 31 January 2008 the claimant was sentenced to seven years’ imprisonment at Bradford Crown Court for causing death by dangerous driving. The claimant was a bus driver and caused a collision whilst at work. He had no relevant previous convictions. His conditional release date is 1 August 2011. He has an exemplary prison record and is assessed as presenting a low risk of re-offending.[5]The claimant, as a foreign national who has been convicted of an offence in the United Kingdom and has received a sentence of at least 12 months’ imprisonment, is liable to automatic deportation under the provisions of the UK Borders Act 2007 section 35(2). It is not necessary to look at the provisions of that Act in any detail. It is sufficient to say merely that a person served with a deportation order has a right of appeal under provisions of the Nationality, Immigration and Asylum Act 1992, and that the appeal may be made on a number of grounds including the ground that the decision to make the deportation order is incompatible with the appellant's Convention rights.[6]At the beginning of his sentence the claimant was held in a Category C prison.[7]On 17 November 2008 the claimant was served with a notice of liability for automatic determination. His solicitors responded to this on his behalf.[8]The claimant subsequently asked to be reclassified as Category D. Such a move was at first opposed by the United Kingdom Border Agency ("UKBA"), but by a letter dated 22 October 2009 the claimant was informed by the Deputy Head of Offender Management at HM Prison Lindholme where he was then held that the opposition from the UKBA to reclassification had been removed. The letter was written to the claimant's solicitors and informed them that the claimant would be informed of his recategorisation and requested to let the prison service know to which Category D establishment he would prefer to go.[9]Following this downward recategorisation on 14 December 2009 the claimant was transferred to HM Prison North Sea Camp, which is an open prison.[10]Thereafter, the claimant sought ROTL which was refused. That refusal and the reasons for it were contained in a letter written to his solicitors on 3 March 2010.[11]Just before that letter was written on 2 March 2010 the defendant made an order for the deportation of the claimant. The defendant's reasons for concluding that the claimant did not fall within any of the statutory exceptions from automatic deportation were contained in a decision letter of 10 March 2010.[12]On 10 or 11 March 2010 the claimant was reclassified to Category C. Some days later he was transferred to HM Prison Stocken, which is a Category C establishment.[13]As I have already mentioned, the claim form was issued on 7 April 2010 and permission to proceed for judicial review was given on 18 May 2010.[14]The claimant appealed against the deportation order to the First Tier Tribunal Asylum and Immigration Chamber. The appeal was heard on 26 July 2010 and the appeal was allowed on human rights grounds on 16 August 2010. Two days later on 18 August 2010 the UKBA applied for permission to appeal the decision.[15]On 7 September 2010 the claimant was transferred to HM Prison Ranby, which is another Category C establishment. Shortly after his arrival there he was subject to a six monthly review of his security categorisation. The review was conducted by Ms Lynn Cottingham, a governor, on 22 September 2010. Her conclusion was that the claimant should remain in Category C. That conclusion was approved by another governor, Paul Wright, on the following day, 23 September 2010.[16]I have been told by counsel that the First Tier Tribunal has refused permission to appeal to the defendant, the defendant has renewed her application for permission to appeal to the Upper Tribunal and that the expectation is that that application will be dealt with in a period of about eight to 12 weeks. None of those matters is formally in evidence, but there is no reason to suppose that any of the information which has been obtained from solicitors is inaccurate.

Discussion

[17]In the light of recent events the purpose of that litigation has altered.(1) The claimant accepts that the challenge to the recategorisation decision of 10 or 11 March 2010 is now academic and cannot be pursued.(2) The claimant seeks leave to amend the claim form so as to challenge the categorisation decision which was made last week. The defendant helpfully does not oppose that application. I therefore give leave to amend.(3) For reasons which I need not examine, the claimant does not now think that a challenge to the ROTL decision can properly be advanced at this stage and has withdrawn that part of the claim.[18]The only decision with which I have to deal is accordingly that which was made at HM Prison Ranby last week. The challenge to that decision is made on that single ground of irrationality.[19]The general definition of the different categories of prisoner and principles of categorisation are set out in Prison Service Order PS 00900.[20]Paragraph 1.1.1 of PSO 0900 contains the following, among other definition of security categories:
“Category C Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt. Category D Prisoners who can be reasonably trusted in open conditions.”
Then one gets in paragraph 1.2 the principles of categorisation. “1.2.1: Prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk that they would pose should they do so … The security category must take account of the above considerations alone. […] 1.2.3: Every prisoner must be placed in the lowest security category consistent with the needs of security and control. A prisoner must be assigned to the correct security category even if it is clear that it will not be possible to allocate him to a particular establishment for prisoners in that category.” Category D Prisoners who can be reasonably trusted in open conditions.”

Category D

[22]Prior to 18 July 2002 foreign nationals who are subject to deportation proceedings could not be placed in Category D. From that date the policy changed. Caution has, however, to be exercised in reclassifying such persons to Category D. PSO 4630 deals with the matter in paragraphs 14.3 and 14.4. Under 14.3: “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…" Under 14.4: "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."[23]Caution regarding recategorisation to Category D more generally is enjoined on prison governors by Prison Service Instruction 03/2009, paragraph 14.1. This says: "14.1 Itis 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.”[24]I now turn to a detailed examination of last week's decision. As I hope I have already made clear, the categorisation review last week was a routine six monthly review and was not a non-scheduled review which had been prompted by anything that occurred during the immigration proceedings.[26]Ms Cottingham in paragraphs 6 and 7 of her witness statement says this:
"6. In conducting my review of the Claimant's categorisation I complied with the procedure set out in PSO 0900. In particular, I consulted all relevant documentation including, the previous RC1, Warrants, the most recent OASys, F2058 Security File and any SIS information and any end of course reports following completion of offending behaviour programme(s). In addition, I took account of the Deportation Order and the fact that the Claimant had been successful in his appeal against the order on human rights grounds. I also took account of information received from UKBA on 24 August 2010 (which is a letter actually addressed to the Claimant), which states: ‘…your appeal was allowed on human rights grounds. However, on 18 August 2010 the United Kingdom Border Agency applied for permission to appeal [from] the First Tier and the outcome of this is awaited’. […] 7. Following consideration of the above documentation, I considered that the Claimant had a heightened risk of abscond in light of the uncertainty concerning his deportation and considered him unsuitable for open conditions at this time."
Form LC1, Part 1, of which contains the risk assessment for a move to lower security category, is attached to Ms Cottingham's statement. To the general question “State if/how risk has changed since last review”, Ms Cottingham wrote this:
"Mr Abbas had UK Border Agency issues and had won in his appeal to be deported. However this is being appealed by the Border Agency therefore heightens the risk of possible abscond from Cat D."
[27]Following that general observation, Ms Cottingham has helpfully answered a great number of specific questions which are asked on the form. It is necessary for me to set out these questions and his reasons in some detail:
“MDT [mandatory drug test] failures (Has the prisoner failed in the last 3 months?) NIL Breaches (Is there a history of breaches or offences committed on Bail? It is important to note incidents up to three years before coming into custody. NIL Adjudications (Has the prisoner two or more proven adjudications in the last 6 months?) No Adjudications (Has the prisoner a proven adjudication attracting ADAs or C.C. [particular disposals] in the last 12 months?) No Behaviour (comments from wings obs books, workplace, personal officer.) ONLY BEEN AT RANBY SINCE 7.7.2010. IEP [incentives and earned privileges] (Is the prisoner on Basic during the past six months?) ENHANCED Escape (Is there evidence of escape in the last 3 years?) [No answer is recorded] Security Information (Is there any ‘reliable or significant’ security information?) FEB REQUESTED NUMBER FOR PIN PHONE ACCOUNT STATED AS ‘SOLICITOR’ BUT WAS NOT OASys (Is the prisoner High or Very High risk of Serious Harm or High Risk of Re-conviction?) Re-conviction = No info held Serious risk of harm = med public MAPPA [Multi-Agency Public Protection Assessment] (Is the prisoner Level 2 or 3? If so OMU should consult with the MAPPA panel or board) NOMINAL Immigration (Is there any information relating to the prisoner being Removed from the country or Deported? If the prisoner is being held on a IS91 warrant he should not be considered for open conditions.) YES. REMOVED FROM CAT D MARCH 10 HEIGHTENED RISK OF ABSCOND QUERY DEPORTATION Sentence Planning (Has the prisoner engaged with the process and what interventions has he completed?) [No answer is recorded] Time left to serve (How long has the prisoner left to serve and does that fit with PSI 03/2009?) 01-08-11”
Breaches Adjudications Adjudications Behaviour (comments from wings obs books, workplace, personal officer.) IEP [incentives and earned privileges] ENHANCED Escape [No answer is recorded] Security Information FEB REQUESTED NUMBER FOR PIN PHONE ACCOUNT STATED AS ‘SOLICITOR’ BUT WAS NOT OASys Re-conviction = No info held Serious risk of harm = med public MAPPA [Multi-Agency Public Protection Assessment] NOMINAL Immigration YES. REMOVED FROM CAT D MARCH 10 HEIGHTENED RISK OF ABSCOND QUERY DEPORTATION Sentence Planning [No answer is recorded] Time left to serve 28. "On reviewing Mr AbBas Cat D I would find him suitable for Cat D CONDITIONS However there are still outstanding immigration issues surrounding deportation + Mr AbBAs should be reviewed again once these issues are no longer a concern."

Time left to serve

[28]The papers were then passed to Mr Wright, a governor, for making a decision following Ms Cottingham's observations. His decision is expressed as one of agreement with Ms Cottingham's proposals. He gives written reasons, which are these: "It is not appropriate to consider open conditions until the UKBA have made a decision to Remove or Deport. The recommending officer/Governor is correct to highlight the increased risk of abscond. The Custody Officer will keep in contact with the UKBA to chase for a decision.”[29]The two risks which have to be considered in relation to the reclassification of a prisoner to Category D are the risk of re-offending and the risk of absconding from open conditions. There is no suggestion that the risk of re-offending is material in this case. The focus is therefore on the risk of absconding. Before I examine the decision as to that risk, I remind myself as I did in a similar case last year that this is not an appeal or re-hearing and that it is not for me to substitute my judgment for that of the decision-maker. As I have previously said, a decision may appear to be surprising but that does not mean that it must fail a challenge by way of judicial review. The burden on a claimant who asserts that a decision is irrational is a heavy one.[30]Notwithstanding that the bar of establishing irrationality is high and notwithstanding the caution which must be exercised before prisoners whose cases have, to use a loose expression, an immigration component are placed in Category D, I have come to the conclusion that the claimant has succeeded in making good his amended challenge.[31]All but one of the factors, that of immigration status, which were listed in the RC1 were favourable to the claimant. In particular he had (with one possible and slight qualification, a query as to an incident regarding a telephone number) an exemplary prison record. He had enjoyed a period of Category D status from November 2009 to March 2010. His transfer to Category D had been made after the withdrawal of objections by the UKBA. There was no criticism of the conduct of the claimant whilst in Category D and he was returned to Category C only after a deportation order had been served. He had established family ties in the United Kingdom in that his wife and three children are United Kingdom nationals and live in this country.[32]The decision is in my judgment irremediably flawed because there was no serious consideration of what should have been a central issue. This is the likelihood of the claimant as an individual with the record which I have mentioned and with the ties which I have mentioned absconding from open conditions. Nor was any attention paid to the futility of absconding. This would have put the claimant at the risks of:(1) return to prison,(2) deferment of the date of release from his existing sentence,(3) a consecutive custodial sentence in respect of the escape and(4) the assurance upon return of being held in a higher category. There was nothing in the claimant's record to suggest that he is a person who would put himself at risk in this way. Indeed, his record in prison strongly suggests the contrary.[33]What the decision amounts to is this: that because the claimant had what have been called “immigration issues” and was a person in whom UKBA were still interested, he could not be treated in open conditions. This was in my judgment placing undue weight on his immigration status. That status is now that of a person not liable to deportation, who has the benefit of a First Tier Tribunal decision to that effect, and whose position can be imperilled only if the defendant surmounts the double hurdle of first obtaining permission to appeal and then succeeding on a substantive appeal. The “immigration issues” amount to a very weak consideration when the case is looked at in a holistic manner. In my judgment no rational decision-maker could have permitted the possibility, and it is no more, of absconding to avoid deportation to outweigh every other material consideration.[34]In my judgment it follows that the decision made last week should be quashed. It was suggested that such an order by the court would be futile in that the matter of categorisation may be considered again next week and that the decision-maker may well come to the same conclusion. I cannot accept that submission for two reasons. First, as a matter of principle when the claimant has demonstrated that a decision is unlawful, it will be an injustice to him not to make the order which naturally follows from such a finding. Secondly, it is by no means certain that the same decision would be reached next week. If a fresh recategorisation is carried out in the near future the decision-maker will have material which was not available to Ms Cottingham. That material includes the reasons given by the First Tier Tribunal, the fact that the First Tier Tribunal has refused permission to appeal and the observations that I have made in this judgment. It is of course possible that the same decision will be reached and reached correctly on a reconsideration, but such an outcome is by no means certain.