Anonymity - Asylum seekers - Deportation - Detention

Shepherd Masimba Kambadzi v Secretary of State for the Home Department: SC (Lord Hope (Deputy President), Lords Rodger, Brown, Kerr, Lady Hale): 25 May 2011

The appellant foreign national detainee (K) appealed against a decision ([2008] EWCA Civ 1204, [2009] 1 WLR 1527) dismissing his application for a declaration that he had been unlawfully detained by the respondent secretary of state.

K was a national of Zimbabwe.

He had been given leave to remain in the UK but had remained without leave once that expired.

He was convicted of two common assaults and one sexual assault and imprisoned.

The secretary of state decided to make a deportation order against him and he was detained under paragraph 2(2) of schedule 3 to the Immigration Act 1971 when he was due to leave prison.

The secretary of state’s published policy was that detention was to be reviewed, weekly in the first month of detention and once a month thereafter, by officials of specified seniority.

By the time his application was heard, K had been entitled to 27 reviews.

There had only been 10 reviews, of which six had been conducted by sufficiently senior officials.

Two of those had been flawed by material factual errors.

K argued that although his detention had complied with the terms of the Act and the principles in R v Governor of Durham Prison Ex p Singh [1984] 1 WLR 704 QBD, the reviews required by the secretary of state’s policy were essential to the continued legality of the exercise of the secretary of state’s discretion to detain; his detention had been unlawful for those periods when there had been no proper review, and he was accordingly entitled to damages.

Held: (Lords Brown and Rodger dissenting on the lawfulness of detention) (1) The initial decision to detain would be lawful if made by the secretary of state pending the making of a deportation order, but the initial decision did not render continued and indefinite detention lawful until the order was made or removal was effected whatever the circumstances, Singh applied.

The secretary of state’s public law duty to give effect to her policy was always fact-sensitive.

The case concerned an executive act interfering with personal liberty, so it had to be asked whether the policy was sufficiently closely related to the authority to detain to provide a further qualification of the discretion she had under the statute.

The reviews were fundamental to the propriety of continued detention; the policy was the means by which the secretary of state gave effect to the Singh principles.

The relationship of the review to the exercise of the authority was also very close.

Authorisation for continued detention should be found in the decision taken at each review.

If the limits imposed by the policy were breached without good reason, continued detention was unlawful and tortious remedies, including damages, would be available.

It was no defence for the secretary of state to say that there were good grounds for detaining K regardless of the reviews: unless the authority to detain was renewed under the powers conferred by the statute he was entitled to his liberty, Roberts v Chief Constable of Cheshire [1999] 1 WLR 662 CA (Civ Div) and R (on the application of WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 applied.

Accordingly, K was entitled to damages at common law for false imprisonment (see paragraphs 50-57 of judgment).

(2) Although K had unsuccessfully claimed asylum and had been anonymised in earlier reports, he had not sought to have the anonymity order maintained.

Orders for anonymity depended on the circumstances of each case, Guardian News & Media Ltd, Re [2010] UKSC 1, [2010] 2 AC 697 followed.

It was no longer the case that all asylum seekers as a class were entitled to anonymity in the Supreme Court.

The making of an order had to be justified.

It was rarely possible to predict the risks a failed asylum seeker would face when returned to his home country, but the position that the asylum seeker adopted was an important factor. In view of the position K had adopted, there was nothing to prevent his being identified, and the anonymity order would be set aside (paragraphs 5-7).

Appeal allowed.

Raza Husain QC, Alex Goodman, Tom Hickman (instructed by Lawrence Lupin) for the appellant; Robin Tam QC, Martin Chamberlain (instructed by Treasury solicitors) for the respondent; Michael Fordham QC, Laura Dubinsky (instructed by Allen & Overy) for the intervener.