Foreign Nationals and the secret policy

Foreign Nationals and the secret policy

By: Matthew Stanbury and Emma Burkinshaw

Matthew Stanbury and Emma Burkinshaw challenge an agreement between NOMS and the UK Border Agency to segregate foreign nationals in designated prisons



On 1st May 2009 the body responsible for the prison service, NOMS, signed an agreement with the body responsible for deportation, UKBA. The agreement, which was kept secret but has been leaked, created a policy whereby foreign national prisoners (FNPs) will be segregated and ‘clumped’ together in designated prisons under a three-tier system as follows:

• ‘Gold Standard Service’: made up of two foreign-national-only prisons (HMP Canterbury and HMP Bullwood Hall) and six ’hub’ prisons, which hold a majority of FNPs (Risley, Hewell, Morton Hall, The Mount, The Verne and Wormwood Scrubs). These prisons aspire to a high standard of co-operation with UKBA and have immigration staff embedded within them for the first time;

• ‘Silver Standard Service’: a number of ‘spoke’ prisons which hold more than 100 FNPs and will provide an enhanced level of co-operation with UKBA;

• ‘Bronze Standard Service’: a number of ‘non-spoke’ prisons approved to hold a smaller number of non-priority FNPs.

So what is the purpose of the new policy? And what is the ‘Gold Standard’ to which the prisons should aspire? The answer is not unsurprising: the stated aim is ‘to provide a firm structure within which to manage and deliver the speedy removal of FNPs.’ The policy has no regard at all to the needs of FNPs in terms of offending behaviour programmes, family visits, or their general needs in terms of health or disability. The knock-on effect is that FNPs will find it increasingly difficult to achieve equality, to progress to a lower security category, or to secure their early release.

The tentative good news is that the Equality and Human Rights Commission has taken up the matter and is bringing a challenge to the policy. However until the matter is heard, FNPs will continue to be transferred to ‘hub and spoke’ prisons, with a view to securing their early deportation. Many will already have been so transferred, the policy having aimed to ensure the transfer of all FNPs by 30th June 2009.

Prisoners who are affected by the policy should not stand for it and would be advised to consult a solicitor with a view to making a challenge to their transfer. This applies equally to those facing the difficulties we highlighted in an article earlier this year on the subject of categorisation. Since then, the prisoner concerned secured a transfer to Category D after making a successful application for judicial review: R (oao Manhire) v SSJ [2009] EWHC 1788 Admin. The court held that our client, who is Zimbabwean, should not have been refused downgrading to Category D, and that the prison had wrongly ignored his settled family circumstances and the remote prospect of his being removed in making its decision.

Despite this it is our experience that prisons continue to use the fact that a prisoner may be liable to deportation as the sole or primary justification for refusing him an opportunity to progress in breach of the principles set out under PSI 35/2002.

The position is no more satisfactory in the context of parole reviews. Despite the decision of the House of Lords in R (oao Hindawi) v SSHD [2006] UKHL 54 FNPs continue to face barriers in securing parole; characterised by the prison service refusing to provide sentence plans, and the probation service declining to prepare reports: both of which tend to make the parole review an empty process, which is both discriminatory and unfair. The position will only be improved by positive action.

* Matthew Stanbury is a Barrister at Garden Court North Chambers in Manchester. Emma Burkinshaw is a Prison Law Caseworker at Grayson Willis Bennett in Sheffield