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

A rule preventing appeals-rights-exhausted prisoners subject to deportation orders from being transferred to open conditions engaged article 14 because it had more than a tenuous connection with the core values protected by article 5. The complaint did not fall within the ambit of article 8. The court proceeded on the assumption that appeals-rights-exhausted status was an article 14 status.

The distinction was nevertheless justified. The Secretary of State could prioritise open conditions for prisoners likely to resettle in the United Kingdom, take account of absconding risks, and provide different rehabilitation opportunities in closed conditions. The blanket exclusion was rationally connected to legitimate aims and was not manifestly disproportionate.

The claimant was serving a life sentence for a terrorist offence. He was an Italian citizen, subject to a deportation order, and had exhausted his appeal rights. Rule 7(1A) of the Prison Rules 1999 prevented him from being classified as suitable for open conditions and therefore prevented consideration of transfer and release on temporary licence.

He sought judicial review, alleging that the rule discriminated unlawfully contrary to article 14 of the ECHR, taken with articles 5 and 8, and was irrational. The central issues were whether the rule fell within the ambit of article 5 or 8, whether the claimant had a relevant status, whether the difference in treatment was justified, and whether the rule was rational.

1. Article 14 and ambit. The four questions were whether the complaint fell within the ambit of a substantive Convention right, whether the difference was based on a protected status, whether the situations were analogous, and whether the difference was objectively justified. For a positive measure, the ambit test was whether the measure had more than a tenuous connection with the core values protected by the relevant right.
2. The prohibition on transfer to open conditions fell within the ambit of article 5. Although the claimant had no right to liberty before tariff expiry, access to rehabilitation and risk-reduction facilities before tariff expiry could affect the prospects of release at or shortly after tariff expiry. Open conditions were an important means of testing reduced risk. The connection with article 5’s protection against arbitrary or unjustified detention was therefore clear and coherent.
3. The complaint did not fall within the distinct ambit of article 8. Any enhanced family contact or private life resulting from open conditions was incidental to the risk-assessment purpose of that regime and was an inevitable consequence of lawful imprisonment.
4. Status. The court considered that being subject to a deportation order and being appeals-rights-exhausted could amount to an immigration status. However, because the issue was not determinative, it proceeded on that assumption without finally deciding it. The status was peripheral rather than sensitive or intrinsic.
5. Justification. Applying the four-stage proportionality approach in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, the rule pursued legitimate aims: prioritising scarce open-prison places for prisoners likely to resettle in the United Kingdom, supporting removal of appeals-rights-exhausted prisoners, and reducing absconding risks. The rule was rationally connected to those aims.
6. A less intrusive measure was not required. The Secretary of State could exclude the class generally, rather than assess every appeals-rights-exhausted prisoner individually. Such prisoners retained access to courses, rehabilitation in closed conditions, and progression regimes. Most would be removed at tariff expiry without needing to demonstrate reduced risk to the Parole Board.
7. The distinction was not manifestly disproportionate. Different rehabilitation opportunities did not need to be identical, provided the opportunity afforded was reasonable in all the circumstances. The irrationality challenge failed for substantially the same reasons. The claim was dismissed.