Damages - Human rights - Torts - Deportation

Walumba Lumba v Secretary of State for the Home Department: Kadian Mighty v Secretary Of State for the Home Department: SC (Justices of the Supreme Court Lord Phillips, Lord Hope, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Collins, Lord Kerr, Lord Dyson): 23 March 2011

The appellant foreign nationals (L and M) appealed against a decision ([2010] EWCA Civ 111, [2010] 1 WLR 2168) rejecting their claims for damages for unlawful detention pending ­deportation.

On release from prison in the UK, L and M had been detained by the respondent secretary of state under schedule 3 to the Immigration Act 1971 pending deportation.

At the time of the detention decisions there was a published policy on the circumstances in which immigrants would be detained.

However, an unpublished policy of a near blanket ban on release pending deportation was applied.

L and M challenged the lawfulness of their detention.

The judge and the Court of Appeal found no liability for false imprisonment because L and M would have been detained if the published policy was applied to them.

It was conceded in the Supreme Court that the detention policy applied to L and M was unlawful because it was a blanket policy and was inconsistent with the published policy.

The issues were whether: (i) L and M’s detention was unlawful in circumstances where they would have been detained under the published policy; (ii) the unpublished policy was also unlawful for containing a presumption of detention; (iii) L and M were entitled to more than nominal damages;

(iv) L was entitled to damages for unlawful detention for breach of the principles in R v Governor of Durham Prison Ex p Singh [1984] 1 WLR 704 QBD for determining whether the period of detention was reasonable; and (v) exemplary damages should be awarded.

Held: (1) (Lords Phillips, Brown and Roger dissenting) L and M had been unlawfully detained because the secretary of state had breached public law duties in exercising the power of detention.

A decision-maker had to follow his published policy unless there were good reasons for not doing so, and could not rely on an aspect of his unpublished policy to render lawful something inconsistent with his published policy, R (on the application of Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139 applied.

The judge had been right that there was no general rule of law that policies had to be published; the Court of Appeal’s criticisms of Nadarajah had been misplaced.

It was necessary to publish that which a person affected by the policy needed to know in order to make informed and meaningful representations to the decision-maker before a decision was made (see paragraphs 21, 26-27, 36, 38 of judgment).

The false imprisonment claims should have succeeded. It had been wrong to apply a causation test to false imprisonment.

The secretary of state had to prove lawful justification for detention; she could not do so by showing that, although the decision to detain was tainted by public law error, a decision to detain free from error could and would have been made (paragraphs 62, 88).

(2) It was not unlawful for the secretary of state to operate a policy which set out the normal practice for deciding whether to detain a foreign national prisoner pending deportation, which could include a presumption in favour of detention, provided that the Hardial Singh principles were observed and each case was considered individually, Hardial Singh applied (paragraphs 53-54).

(3) (Lords Hope, Walker and Lady Hale dissenting) If the power to detain had been exercised by application of a lawful policy, and on the assumption that the Hardial Singh principles had been properly applied, it was inevitable that L and M would have been detained. Therefore, they suffered no loss or damage and were entitled to nominal damages only (paragraph 95).

There was no justification for awarding damages to vindicate the rights that had been infringed (paragraph 101).

(4) L’s claim for breach of the Hardial Singh principles was remitted for reconsideration.

In assessing the reasonableness of the period of detention the risk of reoffending was relevant.

If a detained person had not been deported because he was pursuing a hopeless challenge the length of his detention should be given minimal weight, but pursuing a meritorious appeal should not necessarily be taken into account for his benefit.

Refusal of voluntary return where return was not possible was irrelevant, as was refusal to return where proceedings challenging deportation were continuing.

Refusal to return where there were no outstanding challenges was of limited relevance (paragraphs 109, 121, 127-128).

(5) There had been a deliberate decision not to publish the hidden policy, but that conduct was not so unconstitutional, oppressive or arbitrary as to justify exemplary damages (paragraph 166).

Appeal allowed.

Raza Husain QC, Laura Dubinsky, Tom Hickman, Alex Goodman (instructed by Public Law Project) for the first appellant; Raza Husain QC, Martin Westgate QC, Alex Goodman (instructed by Lawrence Lupin) for the second appellant; Michael Beloff QC, Robin Tam QC, Charles Bourne, Jeremy Johnson (instructed by Treasury Solicitor) for the respondent; Rabinder Singh QC, Elizabeth Prochaska (instructed by Freshfields Bruckhaus Deringer) for the first intervener; Michael Fordham QC, Graham Denholm (instructed by Allen & Overy) for the second intervener.