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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Omoregbee, R (on the application of) v The Secretary of State for Justice [2010] EWHC 2658 (Admin) (22 October 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2658.html Cite as: [2010] EWHC 2658 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
1 Oxford Row Leeds LS1 3BG |
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B e f o r e :
____________________
THE QUEEN on the application of GREGORY OMOREGBEE | Claimant | |
and | ||
THE SECRETARY OF STATE FOR JUSTICE | ||
THE GOVERNOR OF HER MAJESTY'S PRISON HEWELL | Defendants | |
and | ||
UNITED KINGDOM BORDER AGENCY | Interested Party |
____________________
Mr Simon Murray (instructed by the Treasury Solicitor) for the defendants
The interested party was not represented at the hearing
Hearing date: 12 October 2010
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Crown Copyright ©
JUDGE LANGAN:
Introduction
Narrative
Mr Omoregbee's behaviour… has always been exemplary. He complies with all prison rules and regulations. I would recommend him for open conditions.
The assessment dealing with resettlement issues stated that the claimant would live with his family after release "if immigration allow leave to stay."
Excellent reports however deportation status means there is a potential for abscond.
6. All recategorisation reviews consider individual circumstances for each offender and risk of re-offending, risk to the public and risk to the good order of the establishment are considered. In the case of foreign national prisoners the risk as per PSO 4630 the need to "ensure that the intention to deport the prisoner is not frustrated is paramount", whilst still recognising this need to be part of the overall assessment.
7. In the case of the claimant, as was standard practice, a dossier of information was provided…
8. Mr Omoregbee had positive reports in all areas. There were no security concerns, he was using his time constructively and presented a low risk of harm to the public and a low risk of reoffending. According to PNC this was Mr Omoregbee's first time in custody and first offence. All this indicated a potential suitability for open conditions.
9. However, a report from UKBA confirmed that Mr Omoregbee was to be deported. Although it was acknowledged that he had been co-operative with the agency and that he had family in the UK, it was of concern that his offence was deceptive in nature. There were also concerns that due to his wife and child living in the UK, there was a possibility of abscond to ensure he remained here and with them. For that reason it was decided that in order not to frustrate the intention to deport and to minimise the risk of abscond that Mr Omoregbee would remain Category C at this stage.
Legislation and other relevant material
The Secretary of State may make rules for the regulation and management of prisons… and for the classification, treatment, employment, discipline and control of persons required to be detained therein.
Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.
By rule 3 that purpose is "to encourage and assist [convicted prisoners] to lead a good and useful life."
This policy change removes the blanket ban on the categorisation and allocation to open conditions of prisoners subject to enforcement action under the Immigration Act. These prisoners must now be risk assessed as to their suitability for categorisation and allocation to open conditions on an individual basis in the same way as all other prisoners. Deportation will remain a major factor in the risk assessment process, but it may be taken into account only in so far as it might be indicative of the likelihood of abscond and not as a determinative factor precluding allocation to open conditions.
Security Classification Policy and Allocation to Open Conditions
14.1 The overriding purpose of security classification is to ensure that prisoners are retained in custody with a level of security which is consistent with the need to prevent escape and to protect the public…
14.3 Before a foreign national prisoner who meets the deport criteria for whom a CCD2 has been sent is classified, the individual risk must be assessed on the assumption that deportation will take place, unless a decision not to deport has already been taken...
14.4 Each case must be individually considered on its merits but the need to protect the public and ensure the intention to deport is not frustrated is paramount. Category D will only be appropriate where it is clear that the risk is very low.
Discussion
First issue: ultra vires
Second issue: the decision
Conclusion
Note 1 He is now held at HM Prison Stafford. [Back] Note 2 |See Manhire, CO/5312/2009,[2009] EWHC 1788 (Admin): Mr Manhire was a citizen of Zimbabwe who was liable to deportation, but the government had suspended deportations to that country; andAbbas, CO/4361/2010: Mr Abbas had won his appeal against deportation on human rights grounds in the First Tier Tribunal so that, although there might be a further appeal to the Upper Tribunal, he was at the material time not a person liable to deportation.
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