Criminals being deported can’t be transferred to an open prison

R (Akbar) v Secretary of State for Justice [2021] EWCA Civ 898 was a challenge to the Prison Rules 1999, one of which says that a prisoner who is being deported and has run out of appeals “must not be classified as suitable for open conditions”. The challenge was unsuccessful.

Jawad Akbar has a terrorism conviction, reportedly for planning to blow up crowded buildings, and is nearing the end of a 17-year minimum prison term. Born in Pakistan, he has Italian citizenship through his father, and it is to Italy that the Home Office intends to deport him.

In 2018, Mr Akbar asked for a transfer to a Category D open prison. It seems that his motivation was to further his rehabilitation and perhaps avoid deportation. The Ministry of Justice refused, relying on Rule 7(1A) of the 1999 Rules. Mr Akbar launched a judicial review, arguing that the rule discriminated against prisoners who are “appeal rights exhausted”, and that the making of the rule in the first place was irrational.

The Court of Appeal, like the court below, rejected these arguments. Lord Justice wrote: “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. A substantial margin of judgment is afforded to decision-makers charged with these responsibilities”. He added that the chances of Mr Akbar being able to avoid deportation were in any case “vanishingly small”.