R Ali Walleed v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWHC 984 (Admin) |
| Docket Number | Case No: CO/3072/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2019 |
[2019] EWHC 984 (Admin)
IN THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice O'Farrell
Case No: CO/3072/2018
Adam Wagner (instructed by Duncan Lewis (Solicitors) Limited) for the Claimant
David Manknell (instructed by the Government Legal Department) for the Defendant
Hearing date: 2 nd April 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimant, Ali Walleed, a prisoner in closed conditions, challenges by way of judicial review a decision by the defendant Secretary of State for Justice dated 4 June 2018, rejecting the Parole Board's recommendation of 14 November 2017 that he be moved to open conditions.
On 27 March 2009 the claimant was convicted on two counts of rape and sentenced to Imprisonment for Public Protection (“IPP”) with a minimum term of 8 years. On 13 July 2016 the minimum term of the claimant's sentence expired.
The claimant is liable to deportation. On 31 March 2015 he was served with a notice of a decision to make a deportation order. On 7 February 2018 a deportation order was served on him.
The grounds on which the decision is challenged are (i) procedural unfairness, namely, reliance on matters to which the claimant did not have an opportunity to respond; and (ii) breach of the claimant's Article 5 rights, namely, delay in making a decision, resulting in arbitrary prolongation of his detention.
Background
The claimant was born in Somalia on 6 March 1971. In 2000 he claimed asylum in Ireland, using a false identity. In November 2000 he was discovered in the United Kingdom and returned to Ireland pursuant to the Dublin Convention. On 26 June 2004 he was discovered again in the UK when he was arrested on suspicion of robbery. He was convicted and sentenced to 19 months' imprisonment. On 21 November 2004 his application for asylum in the UK was refused.
On 27 March 2009 the claimant was convicted on two counts of rape. The claimant forced his way into the first victim's home and raped her, threatening her with a knife. He met his second victim in a pub. She was intoxicated. He took her to his flat, raped her, and left her in the street in a distressed condition.
The claimant was sentenced to an IPP sentence with a minimum term of 8 years.
Initially, the claimant's security risk was Category B (those who do not require maximum security, but for whom escape still needs to be made very difficult). On 20 February 2015 he was re-assessed as Category C (those who cannot be trusted in open conditions but who are unlikely to try to escape).
On 31 March 2015 a notice of decision to make a deportation order was served on the claimant.
On 13 July 2016 the minimum term of the claimant's sentence expired.
On 11 October 2016 the Parole Board recommended that the claimant should progress to open conditions.
On 14 December 2016 the Secretary of State rejected the Parole Board's recommendation on the basis that the claimant had been served with a notice of decision to make a deportation order and he was not said to constitute a low risk of absconding.
In June 2017 the claimant was assessed by the Offender Assessment System as presenting a high risk to the public and to known adults if he were in the community (and a medium risk to staff), and a medium risk to prisoners while in custody.
On 22 August 2017 the claimant was re-classified as Category B.
On 20 August 2017 the Parole Board directed that an oral hearing should be heard to determine the claimant's application for release from prison. It was noted that the claimant was assessed as posing a high risk of harm to the public and victims and a medium risk to staff in the community and prisoners. Sex offending and substance abuse were identified as the main risks. The Parole Board directed that reports should be submitted by the Public Protection Casework Section (“PPCS”), the Offender Manager (the “OM”) and the Offender Supervisor (the “OS”).
On 6 October 2017 the defendant wrote to the Parole Board, setting out the claimant's immigration history and current immigration status:
“Mr Walleed has no valid leave in the UK. He has an outstanding asylum application which if refused will attract an in country right of appeal.
Immigration have also confirmed that they have drafted the stage 2 refusal notice which is currently being checked.”
The defendant explained that the claimant was not eligible for removal from the UK under the Tariff Expired Removal Scheme (“TERS”) because a deportation order had not been served, he would have a right of appeal against the refusal of his outstanding asylum claim and the travel documents required for his removal were outstanding. The defendant stated:
“Turning to the Ministry of Justice's policy on transferring foreign national prisoners to open conditions, offenders who have been served with a deportation order and are appeal rights exhausted can no longer be transferred to open conditions as outlined in PSI 37/2014 …
Foreign national prisoners, who are liable to deportation, are eligible [to] be transferred to open conditions and will be considered in accordance with the policy …
Should the Parole Board recommend that Mr Walleed be transferred to open conditions, the Secretary of State will give careful consideration to the recommendation in light of all the available evidence …”
On 9 October 2017 the Parole Board gave directions for the claimant's forthcoming hearing, stating:
“It is not clear from the dossier what steps if any have been taken towards deportation and whether Mr Waleed has applied for asylum. It is very important that the panel are aware of what the present immigration situation is. PPCS were directed by the MCA to report on that by 17.9.2017. A report has now been supplied by PPCS by letter dated 6.10.17. … Although late the letter is comprehensive and helpful and I am grateful for it. It does however reinforce the point that the deportation situation needs to be sorted out sooner rather than later. Unless there is any good reason the deportation notice should be served immediately and PPCS should ask the Home Office to expedite this … It would be helpful to know from his legal representative in advance of the hearing whether Mr Waleed intends to appeal against any deportation order or refusal of asylum … Mr Waleed is seeking release. The panel will have to consider the alternative of open conditions if it … does not agree to that. In that case it will have to consider the risk that Mr Waleed will abscond while his immigration status remains uncertain.
It would greatly assist in this case if the Secretary of State was represented. Firstly so that we can be updated on the deportation situation and be given information of what the Home Office has done. Secondly situations involving deportation can be complicated and it would be helpful to be advised on our options. There is a danger that Mr Waleed will simply be left in limbo while decisions about whether he is to be deported are made if steps are not urgently taken now. Mr Waleed is an over tariff IPP prisoner and undertakings have been given that every possible step will be taken to ensure that they are progressed speedily through the process and the Prole Board are determined that that will happen.”
The defendant did not provide representation at the hearing but on 24 October 2017 a letter was sent to the Parole Board, setting out the claimant's current immigration status:
• “Notice of Liability to Deportation served on 31/3/2015
• A Deportation Order has not been served
• Appeal Rights have not been exhausted. Once the Deportation Order is served Mr Walleed will be given an in country right of appeal, and will have 14 calendar days to submit an appeal from the date of service.
• A travel document has not been secured …
In Mr Walleed's case he has not been served with a Deportation Order and his Appeal Rights are not exhausted, and the panel have been invited to comment on his suitability for open conditions.
Should the Parole Board recommend that Mr Walleed be transferred to open conditions, the Secretary of State will give careful consideration to the recommendation in light of all the available evidence.”
On 14 November 2017 the Parole Board held an oral hearing. The OS and OM did not recommend the claimant's release or support a transfer to open conditions.
In its decision letter dated 14 November 2017, the Parole Board decided that it could not order the claimant's release but recommended that he should be moved to open conditions:
“In the light of the Secretary of State's previous decision we have considered the risk of absconding with care … It does not follow as a matter of course that prisoner who is liable to deportation will abscond if sent to an open prison and the prison will have the power to keep the matter under review. He will still be in prison. The concerns previously expressed by the OS on the last hearing were not made in evidence before us. You would not immediately be able to go out of the prison and we consider that the risk of abscond in your case would be manageable in open conditions. If the Secretary of State wished to explore this further in evidence then it was open to him to be represented at the hearing as we requested. In the absence of any evidence to the contrary, we were satisfied that it is not your current intention to abscond if sent to open conditions. We are satisfied that your concern is to progress and not be stuck in closed conditions in a bureaucratic...
To continue reading
Request your trial