Detention – Foreign nationals – Human rights

R (on the application of (1) WL (Congo) (2) KM (Jamaica)) v Secretary of State for the Home Department: CA (Civ Div) (Lord Neuberger, Master of the Rolls, Lords Justice Carnwath, Stanley Burnton): 19 February 2010

The appellant foreign national prisoners (X) appealed against the decision of the judge ([2008] EWHC 3166 (Admin)) dismissing their claims for damages arising out of their detention pending deportation. The respondent secretary of state cross-appealed against the judge’s declaration that the government was prohibited from operating any policy in relation to the detention of foreign national prisoners pending their deportation which contained a presumption in favour of detention.

X had been convicted of crimes in the UK and sentenced to a term of imprisonment. The secretary of state decided to deport them and they were detained pending deportation. X were among a number of foreign national prisoners who challenged the lawfulness of their continued detention and claimed damages for unlawful detention. The issue before the judge was whether the unpublished policy operated by the Home Office since April 2006 concerning the detention of foreign nationals pending deportation was a blanket detention policy or a presumptive policy that allowed such prisoners to be released pending deportation if their release was justified. A new policy was published in September 2008. The judge found that the policy operated before that date was a presumptive rather than a blanket policy, and he declared that the home secretary was prohibited from operating such a policy under paragraph 2 of schedule 3 to the Immigration Act 1971. In reaching that decision, the judge had felt constrained by what he understood to be the consequences of a declaration made by consent in R (on the application of Sedrati) v Secretary of State for the Home Department [2001] EWHC Admin 621 that stated that the terms of paragraph 2 of schedule 3 did not create a presumption in favour of detention upon completion of the sentence. However, the judge went on to dismiss X’s claim for damages on the basis that their detention had been justified in any event. It fell to be determined, among other things, whether the unpublished policy was a blanket policy requiring detention of foreign national prisoners pending deportation in all circumstances, or a policy imposing a presumption of detention, and whether it was open to the secretary of state to formulate and apply a policy under which there was either a blanket policy requiring detention or a rebuttable presumption in favour of detention.

Held: (1) Detention with a view to deportation might be lawful under ­article 5 of the European Convention on Human Rights 1950 even though there was no risk of absconding or reoffending, Chahal v UK (22414/93) [1997] 23 EHRR 413 ECHR and Saadi v UK (13229/03) [2008] 47 EHRR 17 ECHR (Grand Chamber) considered. It followed that a national law which authorised detention with a view to deportation may be compatible with article 5 even if it imposed a presumption of detention pending deportation. There was no rule of domestic law which precluded the application of a presumption of detention pending deportation subject to the reasonableness of the period during which detention was lawful, R v Governor of Durham Prison Ex p Singh (Hardial) [1984] 1 WLR 704 QBD applied. Even if a policy that all foreign national prisoners should be detained unless they could prove they were not at risk of absconding or reoffending might infringe article 5, a presumption, the application of which depended on individual facts that viewed sensibly did not give rise to the presumption, should not be unlawful. Thus, where a court had imposed both a sentence of imprisonment and recommended deportation, it might be assumed (or presumed) that the crime was sufficiently serious to justify detention pending deportation. For those reasons, there was no reason in principle why paragraph 2 of schedule 3 to the act, which clearly required continued detention unless the secretary of state otherwise ordered, should not be construed as a presumption of detention pending deportation. Equally, the secretary of state might lawfully adopt a policy for the purposes of paragraphs 2 or 3 that involved a presumption. A presumption that those who had committed serious crimes should be detained was not objectionable. The declaration made in Sedrati was, accordingly, wrong in law and it would be wrong to allow other cases to be decided on the mistaken view of the law that the declaration represented, Sedrati overruled. Accordingly, the judge’s declaration challenged by the secretary of state would be set aside.

(2) Although a policy involving a presumption of detention was not in itself necessarily unlawful, a policy which effectively operated on a blanket basis was unlawful. On the evidence, including that of a Home Office investigation, it was clear that the policy was effectively operated on a blanket basis rather than one of presumption. In any event, from April 2006 to September 2008, there was in operation a secret policy or practice which was unlawful because it conflicted with, and was less favourable to, X than the published policy. However, that did not make X’s detention unlawful unless the unlawful practice or policy was a material cause of the detention. It was necessary to ascertain whether detention was authorised by reference to the blanket policy or by consideration of a presumption or, indeed, without reference to any administrative practice or presumption. No such materiality was established in relation to X’s detention. Accordingly, the judge had been correct to find that the issue of damages did not arise.

Appeal dismissed, cross-appeal allowed.

Raza Husain, Alex Goodman (instructed by Public Law Project) for the appellant WL; Raza Husain, Laura Dubinsky, Andreas Pretzell (instructed by Lawrence Lupin) for the appellant KM; Robin Tam QC, Charles Bourne, Jeremy Johnson (instructed by Treasury Solicitor) for the respondent.