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

At the permission stage, a claim is arguable where the claimant identifies a realistic case requiring fuller argument, even though the court expresses no concluded view on the merits.

A policy excluding appeal-rights-exhausted foreign national prisoners from referral to the Parole Board for progression to open conditions may arguably engage Article 14 with Articles 5 and 8, and may arguably be irrational or unjustified. The Secretary of State must confront the risk-testing and resettlement functions of open conditions, rather than assume that deportation removes any legitimate purpose in progression.

The claimant was a foreign national prisoner serving a life sentence with a tariff expiring in September 2021. He was liable to deportation and had exhausted his appeal rights.

Under Prison Rule 7(1A), he could not be referred to the Parole Board for assessment of suitability for transfer from Category C to Category D open conditions. He challenged that exclusion as discriminatory under Article 14 of the European Convention on Human Rights read with Articles 5 and 8, and as irrational.

The issue was whether those grounds were arguable so that the claim could proceed to fuller argument.

1. The court concluded that the claim was arguable and that the threshold for proceeding was met. That conclusion was provisional and did not determine how the claim would fare on full argument.

2. The claimant’s liability to deportation, combined with his exhausted appeal rights and status as a foreign national prisoner serving a life sentence, was arguably an “other status” for Article 14 purposes. The court also considered it arguable that the circumstances were sufficiently connected with the ambit of Articles 5 and 8.

3. The exclusion from the Parole Board process arguably produced a relevant difference between appeal-rights-exhausted foreign national prisoners and prisoners who might remain in the United Kingdom. The asserted distinction was closely connected with justification. Open conditions could serve functions beyond resettlement in the United Kingdom, including testing reduced risk and providing experience outside an institutional environment. Those functions might also assist the country to which a prisoner was to be deported.

4. The alternative regime, under which a prisoner might be released directly from closed conditions or referred to the Parole Board only if the Secretary of State considered release unsafe, arguably failed to answer the concern that the earlier risk-testing stage was removed altogether. A blanket refusal to permit progression was therefore arguably unnecessary or unjustified, and potentially irrational.

5. Ryder v The Lord Chancellor [2015] EWHC 1857 (Admin) did not resolve the Article 5 issue because it concerned a different context. On costs, Ewing was treated as guidance: a costs claim need not be in the acknowledgement of service if made contemporaneously, but it should briefly explain the amount claimed. The costs issue itself fell away.