Omoregbee, R (on the application of) v The Secretary of State for Justice

Rule 7(1) of the Prison Rules 1999 does not exhaustively define the matters relevant to prisoner categorisation. Directions may require particular consideration of the risk that deportation will be frustrated, provided the prisoner is assessed individually and deportation status is not treated as determinative.

A decision to retain a prisoner in Category C will not be unlawful merely because other decision-makers might have reached a different conclusion. The court will intervene only where the decision is irrational or falls outside the range of reasonable responses. Family ties in the United Kingdom may rationally be treated either as reducing or increasing the risk of absconding, depending on the decision-maker’s assessment.

The claimant, a Nigerian national serving a three-year sentence, challenged the decision to retain him in Category C rather than recategorise him to Category D. He had an excellent prison record and was assessed as presenting a low risk of reoffending and harm to the public. He was, however, liable to automatic deportation.

The challenge alleged that the policy in PSO 4630 was ultra vires rule 7(1) of the Prison Rules 1999, and that the individual decision was unreasonable and irrational. The central issues were whether deportation-related considerations could lawfully inform categorisation and whether the deputy governor’s assessment could withstand judicial review.

1. The claim was dismissed. The policy challenge and the challenges to the individual categorisation decision failed.
2. Section 47(1) of the Prison Act 1952 authorises rules concerning the classification and control of prisoners. Rule 7(1) of the Prison Rules 1999 requires classification in accordance with the Secretary of State’s directions and requires regard to the specified matters. It does not exhaustively exclude other matters which the Secretary of State may reasonably consider relevant.
3. Paragraph 14 of PSO 4630 was a lawful direction under rule 7(1). It emphasised that the risk of absconding may have heightened importance where a prisoner is liable to deportation, and that the risk should be examined carefully. The prisoner must nevertheless be assessed individually, so deportation status alone cannot determine the category.
4. The decision was not Wednesbury unreasonable. The claimant’s good conduct and low assessed risks made him a strong candidate for Category D, but his liability to deportation, the deceptive nature of his offending and the possible significance of his family in the United Kingdom provided relevant considerations. The possibility that other decision-makers might have reached a different conclusion was insufficient.
5. The decision was not irrational. Family presence could rationally be viewed either as an incentive to remain with the family lawfully or as an incentive to abscond in order to remain in the United Kingdom. The deputy governor was entitled, and required, to assess the significance of that fact herself.

Permission to proceed was granted on the papers by His Honour Judge Grenfell. The Administrative Court dismissed the judicial review claim.