R (Akbar) v Secretary of the State for Justice

Court of Appeal: Haddon-Cave, Nicola Davies and Nugee LJJ, [2021] EWCA Civ 898 [2021] 4 WLR 94, 15 June 2021

This was an unsuccessful claim brought under Article 14 ECHR read with Article 5 and/or 8 to Rule 7(1A) of the Prison Rules 1999, which prevented the transfer to open conditions of prisoners in respect of whom deportation orders had been made to take effect on release from lengthy prison sentences. The Court of Appeal upheld the decision of the the Divisional Court (Hickinbottom LJ and Johnson J) essentially on the same grounds as the Divisional Court had relied upon, rejecting the claim that the discrimination in issue was on grounds of nationality (a suspect ground) and applying the “manifestly without reasonable foundation” test, albeit as modified by the Court of Appeal in R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502.

The claimant challenged Rule 7(1A) of the Prison Rules 1999 (“Rule 7(1A)”) which provides that the Secretary of State for Justice must not transfer any prisoner to open conditions if they are subject to a deportation order and have exhausted their rights of appeal (such prisoners are referred to as “Appeal Rights Expired” or “ARE” prisoners). An Italian citizen through his father, he was born in Pakistan in 1983 and in 1992 moved to the UK with his family. During university he became radicalised and formed extremist jihadist views and in 2004 was convicted with four others of conspiracy to cause an explosion likely to endanger life or cause serious injury to property contrary sentenced to life imprisonment with a minimum term of 17 ½ years and had progressed to Category C by 2016 at which stage further rehabilitation work could only be done in open prison. No transfer was available to him by reason of Rule 7(1A), the Home Secretary having notified the claimant in 2015 of the intention to deport him to Italy and a deportation order having been issued in December 2017.

The judgment was delivered by Haddon-Cave LJ with whom Nicola Davies and Nugee LJJ agreed. At §29 his Lordship observed that the Divisional Court had directed itself in conformity with the four stage test set out by the Supreme Court in R (DA and DS) v Secretary of State for Work and Pensions [2019] UKSC 21; §36 per Baroness Hale of Richmond PSC, and R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51, §8, per Lady Black JSC. The parties agreed that the third stage of the test (differential treatment) was satisfied. The Divisional Court had ruled that the matters in issue fell within the ambit of Article 5, though not of Article 8 (§§33-34) and was prepared to assume, without deciding, that the difference in treatment was on the ground of a “status” protected by Article 14 (§§ 35- 38, citing the Divisional Court’s decision §92). It had then applied the four stage Bank Mellat test and “and cited Leggatt LJ’s summary of the test in R (SC) v Secretary of State for Work and Pensions [2019] EWCA 615, [2019] 4 All ER 787, at [84], namely that the core issue to address in the justification test is whether “the impact of the right’s infringement is disproportionate to the likely benefit of the impugned measure…or whether a fair balance has been struck between the rights of the individual and the interests of the community” (§41) [see now the decision of the Supreme Court at [2021] UKSC 26, [2021] 3 WLR 428, and the associated blog].  It had also relied upon the dicta of Leggatt LJ at §87-89 where he “explained the scope of the state’s ‘margin of appreciation’ or ‘margin of judgment’, particularly in areas of socio-economic policy, where the court will respect the choice made by the legislature unless the difference in treatment is ‘manifestly without reasonable foundation’, that is, unless the measure is manifestly disproportionate to a legitimate aim pursued’” (§42). The Divisional Court had concluded (§46) that “ARE prisoners were in a materially different position from national prisoners such that it was justified to treat them differently [and to] to exclude them as a class.

At §47 Haddon-Cave LJ referred to the Divisional Court’s finding that:

(i) Rule 7(1A) has a legitimate aim. It is legitimate to treat ARE prisoners differently for the reasons given above.

(ii) Rule 7(1A) is rationally connected to that aim.

(iii) No less intrusive measure could be used without compromising the aim. If ARE prisoners could be transferred to open conditions, this would require an individual assessment for all ARE prisoners, while the vast majority of ARE prisoners will be removed at tariff expiry. This assessment would be “wasteful and unnecessary, and would result in both the de-prioritisation of domestic prisoners and in an increased risk in ARE prisoners absconding”.

(iv) Rule 7(1A) will only have an adverse effect on prisoners convicted of terrorist offences. But the impact on those prisoners is outweighed by the extent to which the measure advances its legitimate aims. Accordingly, Rule 7(1A) is not manifestly disproportionate.

On appeal the claimant argued so far as relevant for this blog that the Divisional Court had erred in applying a “manifestly without reasonable foundation” test when considering whether Rule 7(1A) is objectively justified for the purposes of Article 14 and in concluding that the Secretary of State was justified in giving preference to non-ARE prisoners as they were more likely to benefit from open conditions. The respondent cross-appealed the Court’s findings on Article 5 and “other status”.

In considering the manifestly without reasonable foundation question the Court of Appeal had referred to the decision of the Court of Appeal in  R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502, [2020] ELR 399, in which Singh LJ had considered an appeal against the application of this test, concluding that there was “no binding decision which confined the MWRF test to the context of welfare benefits as had been suggested and several decisions which suggested that it was not so confined” (§§70-75, cited at §55) but (§76) that “the crucial point is not so much whether the ‘manifestly without reasonable foundation’ test is the applicable test; it is rather how the conventional proportionality test, even if that is the applicable test, should be applied given that the context is one in which a public authority is required to allocate finite resources and to choose priorities when it comes to setting its budget; and is also a context in which the ground of discrimination is not one of the ‘suspect’ grounds. In this context, it seems to me that there is no material difference between application of the conventional proportionality test, giving appropriate weight and respect to the judgement of the executive or legislature, and the ‘manifestly without reasonable foundation’ test.” The Court also referred to the decision of the Court of Appeal) in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, [2020] 4 All ER 1027, in which Hickinbottom LJ “explained that there were no bright lines and e.g. the degree of social and economic policy involved in any measure would be ‘infinitely variable’ and arrived at a conclusion similar to that articulated by Singh LJ”, i.e. that “whether seen in terms of the application of the manifestly without reasonable foundation criterion or simply in terms of the usual balancing exercise inherent in the assessment of proportionality, the result should be the same…” (cited at §57).

  1. In my view, whether the Divisional Court approached the question of the margin of judgment to be accorded the decision-maker in this case on the basis of a conventional proportionality test or on the basis of a MWRF test does not make any material difference. A MWRF test is simply shorthand for the widest margin accorded to decision makers (or a “full area of judgment” as described by Leggatt LJ in R (SC) v Secretary of State for Work and Pensions at §87 cited by the Divisional Court at [96]). Further, the terms “margin of discretion” and “intensity of security” are two ways of describing essentially the same thing: a wide margin of discretion means less scrutiny and close or anxious scrutiny connotes a narrow margin of discretion. As Lady Hale observed in R (DA and others) v. Secretary of State for Work and Pensions [2019] UKSC 21,  [2020] 1 All ER 573 at [152], the court may well have to return to this “difficult question” as to the precise nature of the MWRF test at some point in the future, but this is neither the case nor the context to do so”.

Having decided at §60 that “[t]he real issues in the present appeal are two-fold: (a) whether a wide area of judgment was appropriate in the present case and (b) whether Rule 7(1A) was objectively justified for the purposes of Article 14” Haddon-Cave LJ went on to state at §73 that (1) “The management of prisons and offender classification is by operation of statute a matter for the Secretary of State … Further, as Singh LJ reminded us in Drexler [§56], the allocation of scarce or finite public resources calls for political judgement and courts “must tread with caution, affording appropriate weight and respect to the judgement formed by the executive or the legislature” ([56]); (2) “The measure under challenge … is not one which impinges directly on the right to liberty [which in the case of] ARE prisoners is … achieved … primarily through deportation under the TERS regime”; (3) “The essential issue is whether the Secretary of State acted lawfully in allocating these places to the class of prisoners likely to be released back into the community as opposed to the class likely to be deported”; (4) “A substantial margin of judgment is afforded to decision-makers charged with these responsibilities”.

At §§74-75 Haddon-Cave LJ commended the approach of the Divisional Court including its emphasis that not every “status” was suspect (referring to the decisions of the ECtHR in Bah v United Kingdom (Application no. 56328/07) (2011) 54 EHRR, the Court of Appeal in SC, per Leggatt LJ at §66, and the Supreme Court in R(RJM) v. Secretary of State for Work and Pensions [2008] UKHL 63, [2009] AC 311 at §5 per Lord Walker and Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 at §21 per Lord Wilson, on which the Divisional Court had relied). The Divisional Court had considered a number of discrimination challenges by  Home Detention Curfew (“HDC”) prisoners (R (Brooke) v Secretary of State for Justice [2009] EWHC 1396 (Admin), R (Francis) v Secretary of State for Justice and Secretary of State for the Home Department [2012] EWCA Civ 1200, R (Mormoroc) v Secretary of State for Justice [2017] EWCA Civ 989, and R(Serrano) v. Secretary of State for Justice [2012] EWHC 3216 (Admin)) which had found “clear justification for a distinction between foreign and national prisoners, as “the scheme designed to promote resettlement into the UK community cannot be expected to apply on the same terms to those subject to notice of intention to make a deportation order”. The Divisional Court had accepted the proposition put for the Secretary of State that the HDC cases indicated, “a fundamental difference between prisoners who are liable to be released into the community in the UK, and prisoners who are not likely to be released as such at all but are liable to be removed from the UK at the end of their minimum custodial term” (§111, cited at §84), finding that the “essential purpose of both HDC and open conditions was to manage the resettlement of offenders back into the community” (§114, cited at §84) and concluding that the cases were “analogous to the present scheme and ‘strongly supportive’ of the Secretary of State’s case that Rule 7(1A) is justified in Article 14 terms (§114, cited at §85). Haddon-Cave LJ ruled at §85 that the Divisional Court had been correct in this assessment: “The fact that transfer to open conditions has the additional benefit of also enabling prisoners to demonstrate to the Parole Board that they no longer pose a risk and are fit for release does not materially affect the analysis”.

Haddon-Cave LJ went on to distinguish Clift v UK (App 7205/07, 12 July 2010) and Rangelov v Germany (App 5123/07, 22 June 2012) on which the claimant sought to rely, in which the ECtHR had stated (at §73 and 87 respectively) that “[v]ery weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention…” He stated at §91 that the discrimination in the instant case was not on grounds of nationality but “on the fact that here, as in the HDC cases, the prisoner is liable to deportation”. At §104 his Lordship ruled that the Divisional Court was “entitled to hold on the evidence that the difference in treatment given to ARE and non-ARE prisoners in Rule 7(1A) was justified in Article 14 terms”, referring to the 15 reasons relied upon by the Court below at §117, as follows:

(i) For the majority of ARE prisoners, TERS requires mandatory removal from the UK at tariff expiry so many ARE prisoners will terminate their detention without showing that they have reduced their risk to an acceptable level. Therefore, they may be released earlier than if they were a national prisoner.

(ii) Prisoners subject to TERS have other opportunities to demonstrate their decreased risk, for example, through courses taken in closed conditions and through the Progression Regimes which are specifically designed to evidence risk reduction in closed conditions.

(iii) The role of open conditions in enabling prisoners to demonstrate risk reduction does not apply to the majority of ARE prisoners who can leave custody without demonstration of any particular level of risk.

(iv)  ARE prisoners who have been convicted of terrorist offences which are “very serious” are the only category of ARE prisoner whose future risk will be assessed under TERS, and there is a clear preference in favour of their removal if they pose less than a significant risk to the UK.

(v) It is not irrational for the Secretary of State to reserve the assessment of the risk posed by such terrorist prisoners to himself in consultation with the National Offender Management Service (“NOMS”) Extremist Unit rather than delegating it to the Parole Board.

(vi) If such prisoners are not removed, such prisoners may be required to show they pose an acceptable risk under section 28 without the benefit of open conditions to demonstrate their risk reduction but the difference in treatment was justified.

(vii) The Prisoner will have access to risk reduction measures available in closed conditions, in particular Progression Regimes.

(viii) The further aim of open conditions is “resettlement” without any significant increase in risk; but risk is not a criterion for removal under TERS.

(ix) The Secretary of State is fully entitled to take a different policy stance towards “resettlement” of IFNPs who are ARE prisoners who will very probably be removed on tariff expiry from national prisoners who will, upon release, almost certainly be required to resettle into a UK community.

(x) The benefits of increasing the ability to enjoy family and private life of a prisoner are at most peripheral to the aims of open conditions.

(xi) The evidence is that open condition prisons are at about 99% capacity, i.e. for operational purposes they are “full”. It may be that closed prisons are over-subscribed and more expensive; but the Secretary of State does not act irrationally simply because he places prisoners in a particular category.

(xii) The Secretary of State was entitled to prioritise the finite resource of open prison places for national prisoners who are far more likely to be released into the local community than ARE prisoners who are more likely to be removed from the UK.

(xiii) The evidence shows that open prisons are operationally full. Were it not for Rule 7(1A), it is likely that there would be over-capacity or waiting times for transfer to open conditions would increase.

(xiv) The Secretary of State was entitled to take into account that giving ARE prisoners the opportunity of ROTL increases the risk of absconding.

(xv) Accordingly, the Divisional Court concluded, the Secretary of State did not act irrationally or unlawfully by giving non-ARE prisoners preference for open conditions.


Claimant: Dan Squires QC and Anita Davies, instructed by Birnberg Peirce

Respondent: Ben Watson QC, instructed by Government Legal Department


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