Omar Stephens (R on the application of) v Secretary of State for Justice

When an indeterminate foreign national prisoner liable to deportation seeks open conditions, the Parole Board must apply the very low risk of abscond test and consider the additional deportation-related factors. A recommendation reached without that analysis may be treated as unjustified or inadequately reasoned. Under paragraph 5.8.3 of the Generic Parole Process Policy Framework, that supplies good reason for the Secretary of State to reject the recommendation. The Parole Board’s risk assessment is a judgment rather than a finding of fact. Where it is materially flawed, the Secretary of State may give it little or no weight and rely on a properly conducted assessment. A refusal based on that approach may be rational.

The claimant, a serving foreign national prisoner liable to deportation, sought judicial review of the Secretary of State’s refusal to accept the Parole Board’s recommendation that he be transferred to open conditions before tariff expiry.

The claimant argued that the Secretary of State had failed to respect the Parole Board’s recommendation and expertise, had unlawfully gone behind a finding of fact concerning the risk of absconding, and had acted irrationally. The central issues were whether the Parole Board had applied the correct deportation-related risk test and whether its flawed assessment supplied a lawful basis for rejecting the recommendation.

The claim for judicial review was dismissed.

1. Applicable test. The Directions issued under section 239(6) of the Criminal Justice Act 2003 required the Parole Board to decide whether the claimant presented a very low risk of abscond. It had to consider the risk of using open conditions to evade custody or deportation, the claimant’s unwillingness to leave the United Kingdom, his previous failure to regularise his immigration status, his prison compliance, his cooperation, his family ties and the effect of absconding on any deportation appeal. These factors had to be assessed cumulatively.
2. Parole Board error. The Board knew that the claimant was liable to deportation but did not refer to the very-low-risk test or address the specific factors in paragraph 8(a) of the Directions. Those omissions were highly material. It was unnecessary to decide whether the Board would have reached the same conclusion had it applied the correct approach.
3. Secretary of State’s decision-making power. The Secretary of State remained the primary decision-maker and was not bound by the recommendation, although he had to take it and the Board’s expertise into account. Paragraph 5.8.3 of the Generic Parole Process Policy Framework permitted departure where, for good reason, the recommendation was unjustified or inadequately reasoned. The Board’s failure to apply the Directions supplied that good reason.
4. Risk assessment and rationality. Consistently with R (Noye) v Secretary of State for Justice [2017] EWHC 267 (Admin), the Board’s assessment of future risk was a judgment, not a finding of fact. The Secretary of State therefore did not unlawfully go behind a factual finding. He was entitled to give little or no weight to the flawed assessment and substantial weight to the offender manager’s enhanced assessment, which applied the relevant considerations. The refusal was rational and all three grounds failed.

The claimant’s progress in custody was acknowledged, but the Secretary of State was entitled to conclude that he remained outside the very limited category of prisoners presenting a very low risk of absconding.

This was a first-instance judicial review. The judgment records that an earlier refusal by the Parole Board had been successfully challenged and the matter referred back to the Board. Permission for the present claim was granted by James Strachan QC sitting as a deputy High Court judge.