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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rozo-Hermida, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 695 (Admin) (23 March 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/695.html Cite as: [2011] EWHC 695 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/03/2011

Mr. Justice Bean :

1. The Claimant is a citizen of Colombia, born on 1^st June 1975. In November 2002 he arrived in the UK and was granted leave to remain as a student. On 23^rd May 2004, by which time he was working as a rickshaw driver in Soho, he raped a 21 year old female passenger. He had been of previous good character. Following a trial before His Honour Judge Price and a jury at the Snaresbrook Crown Court in March 2005 he was convicted and sentenced to 8 years imprisonment. The judge made no recommendation for deportation. He added a Sexual Offences Prevention Order (SOPO) prohibiting the defendant for an indefinite period "from becoming involved in any form of private hire transportation". As a consequence of the conviction and sentence the defendant was to be placed on the sex offenders register indefinitely. An application for leave to appeal against conviction and sentence was refused by the single judge and was not renewed to the full Court of Appeal (Criminal Division).
2. The dangerous offender provisions of the Criminal Justice Act 2003 do not apply in respect of offences committed before April 2005 and accordingly the judge did not have the sentence of imprisonment for public protection available to him. He had jurisdiction to impose a life sentence, but that would have been an unusual form of order for a single rape, whether following the decision of the Court of Appeal in R v Milberry or the Sentencing Guidelines Council guideline for offences of rape published more recently.
3. On 12^th March 2008 the Claimant was informed of his liability to be deported. His response to this was to lodge a claim for asylum. Made as it was for the first time more than 5 years after his arrival in the UK, this was hardly promising, but he was interviewed in the usual way. On 16^th January 2009 he applied to return to Columbia under the Facilitated Returns scheme but immediately changed his mind and withdrew that application.
4. He appealed to the Tribunal against the notice of intention to deport which had been served upon him. I am told that the appeal was heard on 9^th March 2011 and in accordance with the Tribunal's usual practice the decision was reserved. Should the appeal be allowed most, if not all, of this judgment will become academic. However, I was not asked to adjourn the hearing to await the outcome of the appeal. I shall proceed on the basis that the appeal is likely to be dismissed.
5. Following the expiry of the custodial part of his sentence the Claimant, if he had been a British national, would have been entitled to be released. Being a foreign non-EU national liable to deportation, he could lawfully be detained. Paragraph 18(1) of Schedule 2 to the Immigration Act 1971 provides that those detained under any provision of the Act may be held in "such places as the Secretary of State may direct". The Immigration (Places of Detention) Direction 2009 specifies the places in which detention pursuant to Schedule 2 may take place. These include not only named Immigration Removal Centres (IRCs) but also any prison. The Claimant was detained in a prison and remains there to this day.
6. Naim Rahman, the Claimant's solicitor, has exhibited inspection reports on Colnbrook and Brook House IRCs by HM Chief Inspector of Prisons, Dame Anne Owers. Dame Anne found that in the long term facility at Colnbrook between 80% and 90% of the detainees were former prisoners, some of them requiring relatively high levels of security. Colnbrook was built as a prison to Category B security standards. Visits to IRCs are allowed more frequently and for longer periods than in prison but only in a supervised visiting area. A significant difference between prison and an IRC is that IRC detainees are allowed to have mobile phones.
7. On 27^th April 2010 the Claimant's solicitors wrote to the Home Office making representations arguing that the Claimant should be transferred to an IRC. Those representations were rejected on 26^th May 2010. Further letters of 7^th and 25^th June from the Claimant's solicitors again brought a negative response on 30^th June. This claim for judicial review was commenced on 21 July 2010. The Defendant agreed to review the decision to maintain the Claimant's detention in prison. In a four-page letter dated 12^th August 2010 the previous refusal of a transfer to an IRC was maintained. By consent, the Claimant's grounds were amended to include a challenge to the decision contained in the letter of 12^th August. The argument before me has focussed on that decision, and its continuation to the present time after a number of monthly reviews.
8. On 11^th January 2008 the Defendant issued Prison Service Order 4630, Section 5 of which contained her policy with respect to time served foreign national prisoner (TSFNPs). This provided, so far as material:

"In general terms immigration detainees will only normally be held in prison accommodation in the following circumstances:

"… Criminality – those detainees who have been involved in the importation of Class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the sex offenders' register. …

The above criteria are an initial guide to indicate the suitability of detainees for the IRC (Immigration Removal Centre) estate. It must be recognised that the behaviour of ex-FNP detainees will be the key factor as some who will be excluded by the above criteria may be sufficiently well behaved to merit transfer…….

Immigration detainees who fall into one or more of the following groups will remain in prison custody:

Importation of Class A Drugs;

An offender subject to Notification Requirements (Sex Offender Registration);

Life and Public Protection sentenced (under the CJA 2003) prisoners;

Those identified as presenting a risk or potential risk to children as set out in "Safeguarding Children" policy;

Offenders who need to be managed at MAPPA [Multi-Agency Public Protection Arrangements] levels 2 and 3…"

9. On 28^th April 2009 NOMS [the National Offender Management Service] and UKBA [the UK Border Agency] agreed a Service Level Agreement setting arrangements for the joint management of TSFNPs. This contained guidance which was replicated in chapter 55 of the UKBA's Enforcement and Instructions Guidance, as follows:

"55.10.1 Criteria for detention in prison

Immigration detainees should only be held in prison establishments when they present specific risk factors that indicate they pose a serious risk to the stability of immigration removal centres. Risks which would indicate that detainees should be held in prison accommodation include, but are not restricted to, the following circumstances:……

Criminality – those detainees who have been involved in serious offences involving the importation and/or supply of Class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the sex offenders' register. (However, in all such cases, consideration should be given to the specifics of the offence and behaviour whilst in custody).

Behaviour during custody [sic] - where an Immigration Detainee's behaviour whilst in either an IRC or prison custody makes them unsuitable for the IRC estate e.g. numerous proven adjudications for violence or incitement to commit serious disorder which could undermine the stability of the IRC estate.

Security - where the detainee has escaped prison, police, immigration custody, escort or planned or assisted others to do so.

Control - engagement in, planning or assisting others to engage in/plan serious disorder, arson, violence or damage.

When a detainee meets the above criteria DEPMU [the Detention Estate Population Management Unit] will refer them to the Population Management Unit of the National Offender Management Service (NOMS) who will consider their application to a prison.

Where it is agreed with the DEPMU CIO that a person normally considered unsuitable may, exceptionally, be detained in a dedicated immigration removal centre, full details must initially be detailed on the IS91RA part A and entered on the 'risk factors' section of form IS91 served on the detaining agent (see 55.6)

All cases who have completed a prison sentence will be assessed by DEPMU on an individual basis as to whether they should remain in prison or be transferred to an Immigration Removal Centre. Any individual may request a transfer from prison to an Immigration Removal Centre and, if rejected by DEPMU, will be given reasons for this decision." [emphasis added]

10. Exactly one year later, on 28^th April 2010, Mr. Evans, Head of Operations in the UKBA's Detention Services, Criminality and Detention Group, issued a Notice stating that no detainees who were subject to MAPPA should be moved from prison into any Immigration Removal Centre until further notice. Ms. Busch for the Secretary of State submitted that this was a temporary measure rather than a policy. Be that as it may, since all convicted sex offenders are the subject of MAPPA arrangements the effect of the notice was to reinstate the blanket ban on placing registered sex offenders in the IRC estate which had existed until 28^th April 2009. That ban remained until 26^th October 2010, when a revised version of chapter 55 of the EIG was issued reading, so far as material, as follows:

"55.10.1 Criteria for detention in prison

Immigration detainees should only be held in prison establishments when they present risk factors that indicate they pose a serious risk to the stability of immigration removal centres or to the safety of others being held there.

Detainees moving from the prison estate into the IRC estate will undergo an individual risk assessment. The existence of any of the following risk factors indicates that a detainee should be held in prison accommodation rather then an IRC but the list is not exhaustive and DEPMU staff Enforcement Instructions and Guidance should also satisfy themselves that no other risks exist which would make it inappropriate for the detainee to be moved to an IRAC:……..

Criminality – those detainees who have been involved in serious offences involving the importation and/or supply of Class A drugs, committed serious offences involving violence, or committed serious sexual offences requiring registration on the sex offenders register, those who are subject to MAPPA levels 2 and 3 and/or there is a threat to members of the public if the detainee remains within the UKBA estate……[The "behaviour during custody", "security" and "control" categories are then set out in the same terms as in 2009.]

If DEPMU decide that the detainee is not appropriate for accommodation in an IRC they will refer them to the Population Management Unit (PMU) of the National Offender Management Service (NOMS) who will consider their allocation to a prison.

Where it is agreed with the DEPMU SEO that a person normally considered unsuitable may, exceptionally, be detained in a dedicated immigration removal centre, full details must initially be detailed on the IS91RA part A and entered on the 'risk factors' section of form IS91 served on the Enforcement Instructions and Guidance detaining agent (see 55.6). For example, individuals subject to MAPPA 2 or 3 may be temporarily moved into the IRC estate for positioning prior to removal or to facilitate a documentation visit from overseas officials.

All cases who have completed a prison sentence will be assessed by DEPMU on an individual basis as to whether they should remain in prison or be transferred to an Immigration Removal Centre. Any individual may request and transfer from prison to an Immigration Removal Centre through their UKBA Caseowner and, if rejected by DEPMU, the caseowner will feedback the reasons for this decision.

More generally, in the interests of maintaining security and control in the UKBA detention estate as a whole, a cap is placed on the total number of time served FNPs who may be held in the estate at any one time."

11. The 2008 PSO and both the 2009 and 2010 versions of the EIG use the phrase "committed serious sexual offences requiring registration on the sex offenders' register". There is an ambiguity in this phrase: does it mean all offences which are sufficiently serious to require notification to the police so that the offender's name can be placed on the register, or only those cases within that class which are properly described as serious? Notification requirements apply, for example, to an adult defendant convicted of exposure, or possession of low-level indecent images, and sentenced to a very short term of imprisonment or a community order of 12 months or longer duration. Such an offender would have to be placed on the sex offenders register for seven years but the offence would not properly be described as a "serious sexual offence" in the ordinary meaning of that phrase. The ambiguity does not directly affect the present case: the conviction for rape resulting in an 8 year sentence plainly falls into the category of a serious sexual offence however that term is defined.
12. It can be seen from the four documents set out above that there has been a blanket ban on registered sex offenders being detained in immigration removal centres for some, but not all, of the period from January 2008 to date: -

11^th January 2008: blanket ban.

28^th April 2009: no blanket ban: conviction for a serious sexual offence requiring registration indicates that detainee should be held in prison, but in all such cases consideration should be given to the specifics of the offence and behaviour whilst in custody.

28^th April 2010: blanket ban until further notice.

26^th October 2010: individual risk assessment required, but conviction for a serious sexual offence requiring registration is a risk factor indicating that a detainee should be held in prison accommodation rather than an IRC; such a person may "exceptionally" be detained in a dedicated IRC.

13. The decision letter of 12^th August 2010 in the present case was written by Ms K. Wray. After reciting the Claimant's immigration history and the details of his conviction for rape, it continued:

"It is UK Border Agency Policy that in cases where a person is being deported because of a criminal conviction, the starting point still remains that the person should be released on bail unless the circumstances of the case require the use of detention. Under the aforementioned guidance the serious nature of some of these cases demands that detention, if deemed appropriate, is within the prison estate with special attention having been paid to their individual circumstances. In any case in which the criteria for considering deportation action ("the deportation criteria") are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained in a prison facility, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of release is displaced after an assessment of the need to detain in these circumstances in the light of the risk of re-offending and/or the risk of absconding.

Until deportation is effected it is the duty of the UK Border Agency to protect the public from any risk that your client may present and to balance the decision to detain him in a prison facility against your client's right to liberty and the diligent consideration of your client's circumstances.

Your client was convicted of the serious offence of rape for which he was sentenced to 8 years imprisonment, prohibited from becoming involved in any form of private transportation for life and placed on the sex offenders' register indefinitely. The length of imprisonment and subsequent penalties reflects the severity of his crime. It is noted that this was Mr. Roza[sic] Hermida's only conviction, however, the subsequent penalties prohibiting him from becoming involved in any form of private transportation for life and being placed on the sex offenders' register indefinitely re-enforce the sentencing judge's consideration that there is a risk he will re-offend in the future thereby posing a risk of harm to the public, especially women. The UK Border Agency regards this as a significant factor, when taken in conjunction with the severity of your client's offence, in consideration of the above guidance when deciding to maintain detention in a prison facility.

It is noted, that whilst detained in prison Mr. Roza Hermida has demonstrated good behaviour. However this behaviour, when considered under the guidance, is not accepted as evidence that he would pose a lower risk of herm to the public or immigration removal centre staff. It is instead to be seen as evidence that a prison facility is the most appropriate environment for your client pending his deportation because it is in a controlled environment. It is considered that this demonstrates Mr. Roza Hermida has responded well to the structure of a prison regime, especially in light of his previous military career. Mr. Roza Hermida was considered to have been of good character before he offended, the judge alluded to this when he was sentenced. However, despite the fact there was nothing known in any way against him, the sentencing judge stated "but I have to take into account that this young girl was raped at 4.00 in the morning, in a darkened alleyway, in the centre of London, where she screamed to such an extent that she woke up some neighbours". His good character allowed Mr. Roza Hermida to easily take employment in a position of trust as a rickshaw driver. However, he abused this position of trust by taking advantage of a young, depressed girl on medication who was clearly intoxicated. Therefore, any claims of good character and behaviour would continue to be questioned particularly as he refused to take responsibility for the offence. Even though there was an eye witness to the attack, an offender manager report from January 2009, some 4 years after the offence, highlights how Mr. Roza Hermida "continues to deny the offences therefore he is considered unsuitable to under the Sexual Offenders' Treatment Programme. The fact that no offence-specific work has been undertaken means that he will have achieved little or no progress with regard to developing insight into his offending behaviour". These have been extremely persuasive factors in deciding to maintain your client's detention the more controlled environment of a prison facility.

It is noted that he entered the UK legally and initially remained as a student. He went on to support an unmarried partner application from his partner and child shortly before his conviction. However, following the service of a liability to deportation notice, Mr. Roza Hermida decided to claim asylum in the UK. The timing of asylum applications is included in the overall consideration, the fact asylum was claimed only as a result of deportation action being initiated brings the genuine fear of persecution into question. This can impact on the claimant's credibility overall. His credibility was further bought into question when he agreed to withdraw his asylum claim in January 2009 and make an application return to Columbia under the Facilitated Returns Scheme. This was accepted in September 2009; however Mr Roza Hermida failed to comply with the processes and refused to sign a disclaimer to officially withdraw his asylum claim. This behaviour indicates that there is a risk Mr. Roza Hermida will not adhere to restrictions if released and may abscond. Electronic monitoring is not considered sufficient to mitigate this risk for the aforementioned reasons related to your client's character and opportunistic behaviour.

We note that Mr. Roza Hermida has a partner and child who were deported to Columbia just prior to his conviction. Therefore, should he be released at this time, he would have no support network, will not be able to work or access public funds. These factors, in an uncontrolled environment, taken in conjunction with the sentencing judge's consideration, may contribute to Mr. Roza Hermida turning to crime to support himself. He mentioned to the probation officer that his family are suffering financial hardship in Columbia and may feel even more pressure to turn to crime to support them. Even if Mr. Roza Hermida's family were to be here in the UK, this would not be considered sufficient to ensure he maintained contact with UK Border Agency and adhere to release restrictions, because they were not able to exert enough influence over him to prevent him from offending in the first instance. Our records show that his partner and child were residing with him in the UK when he raped Ms. Dennison.

It is therefore considered that the seriousness of your client's offence, taken in consideration with the sentencing judge's considered opinion that your client is a continuing risk to the public, especially women, his failure to take responsibility for his crime, his lack of available support network and his positive response to a prison environment outweighs the decision to transfer him to an immigration detention centre or to grant him TA. The further consideration of whether he would adhere to release restrictions and remain in contact with the UKBA outweighs the presumption of liberty that we work to.

I appreciate that you may find my response somewhat disappointing, but you can be assured that the decision to detain your client in a prison facility is reviewed regularly by senior officers in the UK Border Agency."

14. As I interpret this letter the writer was operating the 2009 guidance requiring consideration of the specific facts of the case and the offender's behaviour in custody, rather than the April 2010 blanket ban. However, when Mr. Rozo's case came to be reviewed on a monthly basis the decision-maker, Bernice Ouseley, applied the terms of Mr Evans' notice of 28 April 2010 and a further Notice of the 16^th August 2010 confirming that "all registered sex offenders are unsuitable for the UKBA estate and should not be moved into the estate unless it is to position for removal or re-documentation." Ms. Ouseley, in paragraphs 10-11 of a witness statement dated 6^th December 2010, refers to the two notices and continues: "As such, since 16^th August 2010, the Claimant has been ineligible for a transfer to the IRC estate, not only because he meets the risk criteria laid down in chapter 55.10.1 (both versions), but also because of his status as a registered sex offender. We do not currently hold the information on the Claimant's MAPPA level. His serious sexual offence and inclusion on the Sex Offenders Register deems him unsuitable for transfer into an IRC". On her interpretation of the policy, therefore, the October 2010 EIG document made no difference, and a blanket ban on transferring any registered sex offender into an immigration removal centre remains in force.

Article 5

15. Article 5(1) of the ECHR requires that whenever someone is deprived of his liberty "there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention". This wording, hallowed by what in terms of Strasbourg jurisprudence is long usage, derives from Ashingdane v United Kingdom (1985) 7 EHRR 528 and was reaffirmed in Aerts v Belgium (2000) 29 EHRR 50, both of these being mental health cases. It was applied in an immigration context in Mayeka v Belgium [2007] 1 FLR 1726. A five year old child was being held in an adult IRC. The Court found that the Ashingdane principle had been violated.
16. The Council of Europe's Committee on the Prevention of Torture and Inhuman and Degrading Punishment (the CPT) has expressed the following view:

"On occasion CPT delegations have found immigration detainees held in prisons. Even if the actual conditions of detention for these persons in the establishments concerned are adequate – which has not always been the case – the CPT considers such an approach to be fundamentally flawed. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence. Admittedly, in certain exceptional cases, it might be appropriate to hold an immigration detainee in a prison, because of a known potential for violence. Further, an immigration detainee in need of in-patient treatment might have to be accommodated temporarily in a prison health care facility in the event of no other secure hospital facility being available. However, such detainees should be held quite separately from prisoners, whether on remand or convicted." [Seventh General Report, paragraphs 28-29].

17. Although this opinion is not binding on me, the views of the CPT are entitled to great respect. Certainly it would be disturbing to most people's sense of fairness that an immigration detainee who has not been convicted of any criminal offence should be confined in a prison save in the most exceptional circumstances. It is not clear to me whether in the passage cited from its Seventh General Report the CPT had in mind the case of an immigration detainee who has served a term of imprisonment for a serious criminal offence and is now liable to deportation because of it. In such a case the "need for segregation" point may be said to work the other way: the Defendant's evidence in this case refers to the problems caused by immigration detainees who have not been convicted of any criminal offence having to rub shoulders with those who have. Nevertheless, in its report following a visit to the UK in November and December 2008 the CPT expressed the view that time served foreign national prisoners liable to deportation should, if they cannot be deported at the end of their custodial sentence, be transferred to "a facility designed to provide conditions of detention and a regime in line with the status of immigration detainees".
18. I was referred to three domestic cases in which detention of an immigration detainee in prison was held to be justified: R(T) v Secretary of State [2007] EWHC 3074 (Admin), R(Chaboub) v Secretary of State [2009] EWHC 1989 (Admin) and R(McFarlane) v Secretary of State [2010] EWHC 3081 (Admin). T was a police informer who, if he was to remain in any form of detention, needed special protection or segregation; Chahboub had previously attempted to incite unrest in an IRC; and McFarlane, according to intelligence reports, posed a current risk of extreme violence. In each of these rather special cases the result was clearly correct. The same is true of R(AE)(Libya) v Secretary of State [2011] EWHC 154 (Admin), a decision of Judge Stephen Davies QC sitting as a deputy judge of this Court, on which Ms Busch strongly relied.

AE(Libya)

19. In October 2008 AE was sentenced to a term of 30 months imprisonment in respect of a number of offences including two breaches of a Sexual Offences Prevention Order imposed on an earlier occasion. He had amassed convictions on 26 separate occasions for a total of 64 offences. Most of these were for offences of dishonesty or motoring offences, but the 2008 conviction was the third occasion on which he had been imprisoned for serious sexual offences. In 2002 he had received a sentence of 29 months for one offence of indecent assault on a girl under 16 and one of indecent assault on an older female. In 2005 he received a sentence of 30 months for two offences of causing or inciting a girl under 16 to engage in sexual activity: the sentencing judge regarded it as a case of grooming and said that he had no doubt that the Claimant remained a danger to young girls. AE was made the subject of a SOPO of indefinite duration which among other things prevented him from communicating with or being in the company of any child under 17 years save for members of his family. When he was sentenced in October 2008 for further sexual offences the judge said that he was "devious, calculating and manipulative" and a significant risk to young girls between 13 and 16. Given this history is it not in the least surprising that reports on him concluded that he continued to pose a high risk of serious harm to young females, including the risk of grooming, nor that the judge found that there were no factors indicating that the refusal of the Home Office to transfer him to an IRC was in any way irrational.
20. Judge Davies considered the EIG document of April 2009 and the Notices of 28^th April and 16^th August 2010. The initial decision in AE's case to detain him in prison was taken before the issue of the April 2010 notice and the judge accepted that the transfer question had been considered on the basis of the test set out in the April 2009 EIG, thus including a consideration of whether there were exceptional circumstances. On the general challenge to the policy the judge held at paragraph 95:

"In my judgment there can be no successful challenge on the grounds advanced by Mr. Karnik [counsel for the Claimant] to a published policy which holds that those convicted of serious sexual offences requiring registration on the Sex Offenders' Register should, save in exceptional circumstances, remain in detention as opposed to an IRC, where that published policy does require an individual risk assessment of all detainees at the outset and on a regular basis thereafter so that the question as to whether there are exceptional circumstances is considered at the outset and regularly thereafter."

21. Provided that the word "serious" is given real content (see paragraph 11 above), I agree with these remarks of Judge Davies and would apply them to the policy as enunciated in October 2010. As for "exceptional circumstances". I respectfully agree with Hooper LJ who said in the recent case of R (AC) v Berkshire West Primary Trust [2011] EWCA Civ 247 at [64] that "the use of the phrase 'exceptional circumstances' tells the decision maker that the number of persons who will succeed under the proviso is expected to be a small minority. It does not otherwise provide a helpful legal test for the decision maker".
22. Generally speaking the more serious the facts of the offence, the greater the risk, and the less likely it is that it will be appropriate to transfer the offender to an IRC. But, as Judge Davies held in AE, an individual risk assessment is always required at the outset and at regular intervals thereafter. A blanket ban on the transfer of particular types of offender is inconsistent with the requirement of an individual risk assessment and in my view is irrational and unlawful. I should record that Mr Southey QC accepted, and I agree, that for these purposes the risk assessment does not need to be a formal process involving OASys scoring or anything of that kind.
23. I also consider that those conducting the assessment should bear in mind that there is a difference between the risk posed by a former offender if he is released altogether, and the risk posed by him while detained in an IRC. Those, like AE, who have committed sexual offences against children preceded by grooming may well be regarded as a category of detainee particularly liable to reoffend, who should be denied access to the internet and mobile phones and cannot, for that reason among others, generally be held in an IRC. The same may apply to gang members or dealers in class A drugs who have a history of conducting their business by mobile phone. But these considerations do not apply in the present case.

Conclusion

24. Whether the matter is put on the basis of Article 5 or of domestic public law, in my judgment the consideration of the Claimant's case both on 12^th August 2010 and thereafter was flawed. Much of the reasoning of the decision letter of 12^th August 2010 is unassailable, but in two respects it is plainly wrong. One is that it treats the Claimant's good behaviour in prison as an indication in favour of his remaining there. That is irrational and unfair to him: his good behaviour in custody over a four year period, though not necessarily decisive, is at least a significant point in his favour. The second is that the writer thinks that the fact that Mr Rozo was put on the sex offenders' register for an indefinite period meant that in the view of the sentencing judge he would pose a permanent risk of harm to women. It does not: the judge has no discretion whatever in the matter. The notification requirement (which is indefinite for any offender sentenced to more than 30 months' imprisonment) is automatic: indeed, strictly speaking, it is not even part of the sentence. The judge did impose a SOPO, limited to prohibiting the Claimant from involvement in private hire transportation, but his sentencing remarks do not include any description of the Claimant as being a permanent menace to women generally. The Claimant could hardly conduct a private hire business by mobile phone from inside an IRC. The SOPO therefore seems to me to add little if anything to the case for present purposes.
25. Ms Ouseley's reviews were also flawed, but for a quite different reason. As indicated above, she was proceeding on the basis that no registered sex offender could be transferred to an IRC (save perhaps to facilitate removal). This must have rendered the reviews somewhat devoid of content.
26. The result is that the Claimant has never been subjected to an initial risk assessment or review of that assessment on a proper basis. It follows that the decision of 12 August 2010 and its maintenance on review must be quashed.
27. Mr Southey accepted that in that event it is not for me to substitute my own decision. I would usually direct reconsideration within the next 28 days, but since the Tribunal's determination of the Claimant's appeal is due very shortly the Defendant may wish to see it before making a decision. I direct that the Defendant is to reconsider the decision to detain the Claimant in prison in accordance with the October 2010 policy and the guidance given in this judgment within 28 days after the handing down of this judgment, or, if the Tribunal's decision has by that time been promulgated, within 21 days of that promulgation, whichever is the later.