Oge-Dengbe v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 2011 |
| Neutral Citation | [2011] EWHC 266 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8136/2010 |
| Date | 21 January 2011 |
[2011] EWHC 266 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Before: His Honour Judge Kaye Qc
Case No: CO/8136/2010
Mr Stanbury (instructed by Grayson Willis Bennett Solicitors) appeared on behalf of the Claimant
Mr Murray (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
HHJ KAYE QC:
The claimant is a 52-year-old national of Sierra Leone and was at the material time a prisoner at HMP Wellingborough. He had the advantage of refugee status. He challenges the decision of the Governor of the prison dated 29 April 2010 refusing to reclassify him as a category D prisoner. Although proceedings were issued also against the Governor of HMP Wellingborough, the effective defendant is the Secretary of State for Justice.
Originally this challenge was mounted on two grounds:
First, that the provisions of the relevant Prison Service Order ("PSO"), PSO 4630, were ultra vires rule 7 of the Prison Rules 1999 in that it promotes consideration of the deportation process as paramount rather than the requirements of maintaining good order and facilitating training.
Second, the decision was based solely on the claimant's deportation status and failed to take account of other relevant policies and is accordingly irrational and unreasonable.
Permission to make the application was granted by Judge Langan QC (sitting as a Judge of the High Court) on 7 September 2010 on paper. He considered that it was arguable based on the papers before him that the Governor's decision not to reclassify the claimant to category D status was based solely and not just mainly on his immigration status and was therefore unlawful. He directed the claimant's skeleton argument to be lodged not less than 21 days before the hearing and the defendants' skeleton arguments not less than 14 days before the hearing. This, then, is the substantive hearing.
On 2 November 2010 an application to add a third ground to include a challenge that PSO 4630 was incompatible with the Race Relations Act 1976 was refused by Langstaff J but with a caveat that the application might be renewed at the hearing. At the same time, however, it was conceded (in my judgment rightly, having regard to R (Omoregbee) v SSJ [2010] EWHC 2658 (Admin)) that the first ground, the ultra vires ground, was no longer arguable, leaving the second.
The claimant's counsel, in his skeleton argument lodged on 16 January 2011, albeit not in conformity with the directions of Judge Langan, also refers to a proposed application to add a fourth ground, namely that the claimant ought to have had a six-monthly review. This was on the basis that, as a person within the last 30 months of his sentence, the claimant was entitled to a categorisation review every 6 months in accordance with Prison Service Instruction ("PSI") 16/2008. On this basis the claimant was entitled to a further categorisation review on or about 20 October 2010 but it has not taken place.
Mr Stanbury, who has appeared for the claimant, however, has quite properly made it clear in his skeleton argument he was not pursuing the amendment refused by Langstaff J. As to his other proposal, this was more in the nature of drawing a complaint to the attention of the defendant, who was in turn, no doubt, awaiting the outcome of this present claim.
The background is as follows.
The claimant is, as stated, a citizen of Sierra Leone. In 2002 he was granted asylum and refugee status. He appears to have a wife in the United Kingdom. This may be in some doubt, having regard to matters I refer to later.
The claimant was sentenced on 27 July 2006 to 11 years imprisonment at Manchester Crown Court for conspiracy to import class A drugs. His conditional release date is 22 March 2011 and his sentence expiry date is 22 September 2016. On 17 June 2009 he was notified of his liability to deportation under section 32(7) of the UK Borders Act 2007 ("the 2007 Act").
For some time the claimant has been applying for re-categorisation to category D status. This was prolonged owing to the prison authorities seeking clarification of his refugee status from the UK Border Agency since at least prior to 21 September 2009, when his reclassification review was deferred pending receipt of the clarification. The prison authorities were aware of his concerns because his then solicitors wrote complaining of the deferment. Following the receipt on 21 April 2010 of notification by the UK Border Agency of its intentions in this respect, on 29 April 2010 the decision was made to keep him at HMP Wellingborough with his prison categorisation at its present level, category C, on the basis that deportation would "manifestly increase the risk that you would comply with open conditions". This was notwithstanding, as the defendant concedes, that the previous view of the review board convened on 20 April 2010, the day before the receipt of the notification on 21 April 2010, was to approve his application noting his "very positive aspects" and (in substance) that his exemplary custodial behaviour, course work undertaken to reduce risk and the fact that he had refugee status therefore presented as a low risk of absconding. Indeed, the defendant confirmed in his Grounds of Defence that it was the receipt on 21 April 2010, the following day, of the UK Border Agency's indication that the claimant's refugee status was under consideration that led to the review board being quickly reconvened, resulting in the change of mind that he now, in light of that, gave rise to a "significantly increased risk of absconding". According to the re-categorisation review form completed by the prison authorities, this seems to have been the only reason given for revision of the previous view. Indeed, the reason stated was as follows:
"Recent communication from the UK Border Agency indicates that they are actively considering deportation in your case. This would significantly increase the risk that you would not comply with open conditions."
On 28 July 2010 the claimant was notified by the UK Border Agency of its intention to take away or terminate his refugee status on the basis of a change of circumstances in his country of origin, Sierra Leone.
It appears from the letter notifying him that the claimant was granted asylum on the basis that he was claiming that his father was the former leader of the SLPP in Sierra Leone, which is now the party of opposition (though his status as the son of an allegedleader of the SLPP I am told is now a matter of dispute). The UN High Commissioner for Refugees' report of June 2008 recommended that those who fled Sierra Leone should cease to enjoy refugee status and it appears to be this which may have prompted the UK Border Agency's decision.
On 17 August 2010 the United Kingdom formally informed the UN High Commissioner for Refugees of intention to withdraw the claimant's refugee status. As Mr Stanbury correctly points out, the indication that the UK Border Agency is considering terminating his status is just that. Until the UK Border Agency formally revoked his status he continued to have that status. In his response, the claimant indicated that he fears for his life if returned to Sierra Leone and will fight deportation.
This has important consequences. Under section 32(4) of the 2007 Act, the claimant is liable to automatic deportation on completion of his sentence. By section 32(2)(a), however, an exception exists where removal would breach the individual's Convention rights. Under section 32(2) (b) a further exception exists where removal would breach the UK's obligations under the Refugee Convention. In the first case ("exception (a)") the burden is on the individual to show he qualifies for the exception. To do that he must apply to the First Tier Tribunal. This is the reason why a notification of deportation carries with it also a notification of a right of appeal. It appears no such application has yet been made, presumably on the ground that until very recently, as will be seen, no formal decision had as yet been made.
In the second case ("exception (b)") the burden rests on the state to demonstrate removal would not breach its obligations. Mr Stanbury submits that the removal of a person with refugee status would fall within exception (b). Hence, unless and until the United Kingdom formally terminates the claimant's refugee status, he falls, it is argued, potentially within exception (b). This is an interesting point but not the one that falls before me, even though the background and the statutory context is illuminating.
Mr Stanbury points out, further, that the most recent Home Office report records that SLPP supporters have since been subjected to inhumane conduct constituting a breach of their human rights. The whole point of this line of submission, as I understand it, shows, he says, there is at least an arguable case that the claimant would be at risk if he was removed and deported to Sierra Leone and by implication may well support a right of appeal or a case for appealing any deportation notice. On the other hand, if the risk of removal is removed, there is a powerful incentive for the claimant not to abscond in the now remaining two months of his sentence. If he did abscond, the likely effect on his refugee status (i.e. termination and deportation) would be disproportionate to any perceived benefit to be derived from absconding. He has, in short, every reason, it is argued, not to abscond on the basis, as I understand...
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