Abbas, R (On the Application Of) v Secretary of State for Justice

A prisoner’s security category must be determined objectively by reference to the likelihood of escape and the risk posed if escape occurs. The prisoner must be placed in the lowest security category consistent with security and control. Immigration status may be relevant, particularly where deportation remains possible, but it cannot automatically justify exclusion from open conditions.

The decision-maker must seriously assess the individual risk of absconding and weigh it against the prisoner’s record, conduct, ties and the practical consequences of absconding. A decision which treats unresolved immigration matters as determinative, without a holistic assessment of those matters, is irrational. Judicial review is not an appeal or rehearing, but the court must quash a decision shown to be unlawful.

The claimant was serving a seven-year sentence for causing death by dangerous driving. He was a foreign national subject to an order for automatic deportation, but the First-tier Tribunal had allowed his appeal on human rights grounds. The Secretary of State’s application for permission to appeal remained pending.

The claimant had previously been placed in Category D and transferred to open conditions. Following the deportation order, he was returned to Category C. At a routine six-month review, prison governors maintained that classification because the unresolved immigration proceedings created a heightened risk of absconding. The claimant amended his judicial review claim to challenge that decision on the ground of irrationality. The central issue was whether the governors had lawfully assessed his suitability for Category D.

1. The claim succeeded. The decision maintaining the claimant in Category C was quashed. The challenge to the earlier recategorisation decision had become academic, and the claimant withdrew the challenge to the refusal of release on temporary licence.
2. Under PSO 0900, prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk they would pose if they did so. The prisoner must be placed in the lowest security category consistent with security and control. The assessment must therefore focus on the individual prisoner and the relevant security risks.
3. The court recognised that caution is required before placing a foreign national involved in deportation proceedings in Category D. Nevertheless, the claimant’s immigration status was only one consideration. The decision-maker had to assess his actual likelihood of absconding, taking account of his exemplary prison record, previous period in Category D, family ties and the absence of conduct suggesting that he would abscond.
4. The governors had treated the outstanding immigration matters as effectively determinative. They had not seriously considered the claimant’s individual likelihood of absconding or the futility and consequences of doing so, including return to custody, possible deferment of release, a consecutive sentence for escape and a higher security category. No rational decision-maker could have allowed the mere possibility of absconding to outweigh every other material consideration.
5. The court emphasised that judicial review is not an appeal or rehearing and that the burden of establishing irrationality is heavy. However, once unlawfulness was established, quashing was the natural remedy. The possibility that a lawful reconsideration might reach the same conclusion did not make the order futile.