Court Confirms Rule 7(1A) Compliance with ECHR Article 14: Akbar v Secretary of State for Justice [2021] EWCA Civ 898

Introduction

The case of Akbar v Secretary of State for Justice ([2021] EWCA Civ 898) presents a significant legal challenge concerning the classification and transfer of prisoners within the United Kingdom's prison system. The appellant, R Akbar, an Italian citizen born in Pakistan, contested Rule 7(1A) of the Prison Rules 1999, which prohibits the transfer of prisoners subject to deportation orders and who have exhausted their right to appeal from being moved to open conditions. This commentary delves into the background, key legal issues, court reasoning, and the broader implications of the judgment.

Summary of the Judgment

The Court of Appeal upheld the decision of the Divisional Court, dismissing Akbar's appeal against Rule 7(1A). The core issue revolved around whether this rule constituted unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR), in conjunction with Articles 5 and 8. The courts concluded that Rule 7(1A) was both rationally connected and proportionate to legitimate aims, thereby complying with ECHR standards. The differentiation in treatment between deportation-ordered prisoners and others was deemed justified, emphasizing the management of limited open prison resources and national security interests.

Analysis

Precedents Cited

The judgment extensively references several key cases to substantiate the court's reasoning:

Bah v United Kingdom (2012) 54 EHRR 21: Addressed whether immigration status qualifies as a "status" under Article 14.
R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57: Explored discrimination based on immigration status.
R (Francis) v Secretary of State for Justice [2012] EWCA Civ 1200 & R (Mormoroc) v Secretary of State for Justice [2017] EWCA Civ 989: Determined that being subject to a deportation order does not confer a "status" under Article 14.
Bank Mellat v HM Treasury (No 2) [2013] UKSC 39: Established the four-stage proportionality test applied in Article 14 disputes.
R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502 & R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2021] EWCA Civ 542: Clarified the application of the margin of appreciation in domestic decisions.

These precedents collectively informed the court's approach to assessing discrimination claims, particularly in distinguishing between different grounds of discrimination and the appropriate level of scrutiny required.

Legal Reasoning

The court's legal reasoning centered on whether Rule 7(1A) constituted unjustifiable discrimination under Article 14, which prohibits discrimination on various grounds, including nationality. The following key points summarize the court's reasoning:

Ambit of Convention Rights: The court examined whether the measure had a substantial connection with the core values protected by Article 5 (right to liberty) and Article 8 (right to private and family life).
Discriminatory Basis: It was determined that the difference in treatment was based on deportation status, a peripheral characteristic compared to innate attributes like race or gender.
Proportionality Test: Applying the four-stage test from Bank Mellat, the court assessed whether Rule 7(1A) pursued a legitimate aim, was rationally connected to that aim, was necessary in the least intrusive way, and whether its benefits outweighed its adverse effects.
Margin of Appreciation: Acknowledging the state's wide discretion in matters of prison management and national security, the court deferred to the Secretary of State's expertise, provided the decision was not manifestly without reasonable foundation.
Justification for Differential Treatment: The necessity to prioritize limited open prison resources for prisoners likely to resettle in the UK, as opposed to those subject to deportation orders, was deemed a legitimate and proportionate aim.

The court meticulously balanced individual rights against public interest, ultimately finding that Rule 7(1A) did not breach Article 14.

Impact

This judgment reinforces the authority of the Secretary of State in classifying and managing prisoners, particularly in allocating limited open prison resources. It provides a clear affirmation that policies differentiating treatment based on deportation status can be lawful, provided they meet the proportionality and justification standards set forth by the ECHR.

Future cases involving prisoner classification and potential discrimination claims will likely reference this judgment to assess the legality of differential treatment based on immigration and deportation statuses. Additionally, it underscores the judiciary's recognition of the state's broad discretion in matters intersecting with national security and public safety.

Complex Concepts Simplified

Rule 7(1A) of the Prison Rules 1999: A regulation that prevents prisoners who are subject to a deportation order and have no remaining appeals from being transferred to open prison conditions.
ARE (Appeal Rights Exhausted): Prisoners who have exhausted all legal avenues to contest their deportation orders.
TERS (Tariff Expired Removal Scheme): A system allowing for the removal of foreign national prisoners serving indeterminate sentences once they have served their minimum term.
Open Conditions (Category D): Prison conditions that offer greater freedom and are typically intended for prisoners nearing release and prepared for reintegration into society.
Article 14 of the ECHR: Protects against discrimination in the enjoyment of rights and freedoms set out in the Convention.
Margin of Appreciation: A principle allowing national authorities discretion in how they fulfill their obligations under the ECHR, especially in areas closely connected to national sovereignty.

Conclusion

The Court of Appeal's decision in Akbar v Secretary of State for Justice substantiates the legality of Rule 7(1A) under the ECHR framework, particularly Article 14 concerning discrimination. By meticulously applying the proportionality test and acknowledging the state's margin of appreciation in managing prison resources and national security, the court affirmed the rule's compliance with human rights standards. This judgment not only upholds the current prison classification policies but also sets a precedent for future legal assessments of similar regulatory measures within the UK's criminal justice system.

The affirmation of Rule 7(1A) underscores the delicate balance courts must maintain between individual rights and broader public interests, especially in contexts involving national security and the effective management of limited resources. As such, this judgment serves as a pivotal reference point for both legal practitioners and policymakers navigating the intersection of human rights and prison administration.