04/10/2010
In R (Saeed Abbas) v Secretary of State for Justice (heard on 28.09.2010), The Administrative Court sitting at Leeds (HHJ Langan QC) quashed a decision by the Governor of HMP Ranby refusing to transfer the Claimant foreign national prisoner (FNP) to an open prison.
R (Saeed Abbas) v Secretary of State for Justice (28.09.2010)
> judgment .
Mr Abbas, a Pakistani national, was sentenced to 7 years imprisonment in 2007 for causing death by dangerous driving, thereby making him automatically liable to deportation. In November 2009 he was downgraded to Category D after the UK Border Agency (UKBA) apparently removed its objection to him being recategorised, and he subsequently spent four months at an open prison, which passed without incident.
In March 2010 the UKBA served a deportation order on Mr Abbas and the prison duly upgraded him to Category C. The reasoning was that he could no longer be trusted not to abscond, notwithstanding that the order did not deprive Mr Abbas of his right to appeal, which he has already chosen to exercise.
Mr Abbas was subsequently granted permission to challenge that decision by way of judicial review. In August 2010 his appeal against deportation was heard by the First-Tier Tribunal (FTT) and was successful. It was held in those proceedings that deporting Mr Abbas would breach the Article 8 rights of his British wife and children.
In September 2010 the Governor HMP Ranby took a fresh decision, refusing to downgrade Mr Abbas despite his change in deportation status. The reasoning given was that the UKBA are appealing to the Upper Tribunal in the hope of having the FTT decision overturned. It was said that as long as this appeal was outstanding Mr Abbas remained an abscond risk. This was despite it being common ground that Mr Abbas otherwise met the criteria for open conditions.
In quashing the decision HHJ Langan QC held, as he did in R (Manhire) v SSJ [2009] EWHC 1788 (Admin) , that the decision-maker had overlooked the improbability of Mr Abbas absconding in light of the detrimental impact that course would have upon his deportation appeal. She had also failed to give adequate consideration to his settled family circumstances and his previous successful stint in an open prison.
On 12th October 2010 the court will hear argument that the policy regarding the transfer of FNPs to open prisons (PSO 4630) is itself unlawful.
The Appellant was represented by Matthew Stanbury , instructed by Grayson Willis Bennet , Sheffield.