Factual and Procedural Background
On 19 December 2008, Judge Davis delivered judgment on judicial review claims brought by five lead claimants who alleged unlawful detention by the Home Secretary. The detention was pursuant to an unpublished policy introduced in April 2006 concerning the detention of convicted foreign nationals after completing prison sentences pending deportation. This unpublished policy conflicted with the Home Secretary's published policy and was challenged as inconsistent with paragraph 2 of Schedule 3 to the Immigration Act 1971. The claimants sought damages, including exemplary damages, for false imprisonment. The judge found that the policy operated before 9 September 2008 was a presumptive detention policy rather than a blanket policy, and granted declarations that the Home Secretary's policy was unlawful due to an impermissible presumption in favour of detention and lack of publication. Claims for judicial review and damages were dismissed for four claimants, with one claim adjourned. Appeals were brought by two claimants and a cross-appeal by the Home Secretary against one declaration. The court reviewed the legislative background, the Home Office's published and unpublished policies, and extensive internal reviews and disclosures. The court also considered individual cases of the appellants, focusing on the legality of their detention and the application of the unpublished policy.
Legal Issues Presented
- Whether the unpublished policy was a blanket detention policy or a presumptive policy allowing individual consideration.
- Whether the Secretary of State can lawfully apply a policy with either a blanket detention or a presumption in favour of detention.
- Whether the Secretary of State has a duty to publish the detention policy for foreign national prisoners.
- Whether applying an unpublished policy inconsistent with the published policy is unlawful.
- If the unpublished policy was unlawful, whether detention pursuant to it was unlawful in all cases or only where detention would not have been authorised under the published policy.
- Whether claimants unlawfully detained but who would have been detained under the published policy are entitled to substantial damages.
- Whether exemplary damages may be awarded if substantial damages are not recoverable.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hardial Singh [1984] 1 WLR 704 |
Implied limitations on power to detain foreign nationals pending deportation, including reasonableness of detention period and purpose limitation. |
Confirmed as authoritative statement of limits on detention powers under paragraph 2 Schedule 3 of the Immigration Act 1971. |
| Holgate-Mohammed v Duke [1984] AC 437 |
Common law tort of false imprisonment includes breach of Wednesbury principles; lack of lawful authority invalidates detention. |
Used to support that unlawful policy application can render detention unlawful. |
| D v Home Office [2006] 1 WLR 1003 |
Application of public law principles to detention decisions; causation in false imprisonment claims. |
Relied upon for principle that unlawful policy must causally affect detention to give rise to damages. |
| R (Gillian) v Commissioner of Police of Metropolis [2006] UKHL 12 |
Requirement that interference with liberty be "prescribed by law"; administrative policies insufficient. |
Referenced regarding necessity of lawful basis and accessibility of detention policy. |
| R (Abbasi) v Foreign Secretary [2003] EWCA Civ 1598 |
Legitimate expectation arising from published policy must be respected. |
Supported principle that failure to apply published policy without good reason may be unlawful. |
| R (Sedrati) v Home Secretary [2001] EWHC Admin 410 |
Declaration that paragraph 2 Schedule 3 does not create presumption in favour of detention. |
Court found declaration incorrect; allowed Secretary of State's cross-appeal overruling this declaration. |
| Chahal v UK (1996) 23 EHRR 413 |
Article 5(1)(f) permits detention with a view to deportation without necessity of risk of absconding or reoffending. |
Supported that detention with presumption is compatible with ECHR. |
| R (SK) v Secretary of State for the Home Department [2008] EWCA Civ 1204 |
Failure to carry out regular detention reviews does not necessarily render detention unlawful. |
Applied to differentiate procedural breaches from substantive illegality of detention. |
| R (Nadarajah) v Home Secretary [2003] EWCA Civ 1768 |
Unlawful reliance on unpublished policy inconsistent with published policy renders detention unlawful. |
Accepted as good administrative practice that policy inconsistencies affect legality. |
| Christie v Leachinsky [1947] AC 573 |
Requirement that person arrested must be informed of grounds for arrest to render detention lawful. |
Used to critique causation approach in false imprisonment claims where unlawful detention is based on policy. |
| Roberts v Cheshire Chief Constable [1999] 1 WLR 662 |
Failure to conduct timely detention review renders detention unlawful after prescribed period. |
Supported discussion on causation and damages in unlawful detention claims. |
| R (Q) v Secretary of State for the Home Department [2006] EWHC 2690 (Admin) |
Delay caused by detainee's statutory appeals can be disregarded in assessing reasonableness of detention period. |
Applied to confirm detainee conduct relevance in detention legality. |
| R (I) v Secretary of State for the Home Office [2002] EWCA Civ 888 |
Asylum claims and appeals do not necessarily preclude continued detention if removal is otherwise not possible. |
Supported principle that detainee conduct affects detention lawfulness. |
| R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 |
Detention lawful if caused by detainee's refusal of voluntary repatriation and risk of absconding. |
Applied to uphold continued detention lawfulness despite duration. |
| Thompson v Metropolitan Police Commissioner [1998] QB 498 |
Principles governing exemplary damages for unlawful imprisonment. |
Referenced regarding circumstances justifying exemplary damages and their assessment. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the legislative framework, published policies, and the unpublished policy or practice operated by the Home Office. It found that the unpublished policy, particularly after the introduction of the Cullen criteria, effectively operated as a blanket detention policy for foreign national prisoners (FNPs), contrary to the judge's earlier finding of a presumptive policy. The court held that while a presumption in favour of detention is not unlawful per se and is compatible with the Immigration Act 1971 and Article 5 of the European Convention on Human Rights, a blanket policy that precludes individual consideration is unlawful as it fetters the Secretary of State's discretion.
Furthermore, the court emphasized that the unlawful unpublished policy was inconsistent with the published policy, which contained a presumption in favour of release. The operation of an unpublished policy at variance with the published policy was unlawful under principles of legitimate expectation and administrative fairness, though there is no absolute legal duty to publish policy. The court rejected the view that policy must always be published to be lawful, but stressed that departure from published policy without good reason is unlawful.
On causation, the court agreed with the principle that unlawful detention must be causally linked to the unlawful policy to give rise to a claim for damages. It distinguished between cases where detention would have occurred lawfully regardless of the unlawful policy and those where the unlawful policy was material. In the present cases, the court found no material causation as the claimants would have been detained lawfully under the published policy.
Regarding damages, the court noted that false imprisonment is actionable per se, but where no actual loss or damage is shown, nominal damages may be appropriate. The court expressed difficulty with inconsistent case law on whether damages should be nominal or substantial when detention would have been lawful anyway. It also considered the Human Rights Act requirements and concluded that compensation depends on proof of damage. The court agreed with the original judge that exemplary damages were not appropriate given the circumstances, including the existence of bail rights and the absence of oppressive conduct warranting punitive damages.
In relation to the appellants individually, the court reviewed the facts and detention reviews and found that their detention was lawful under the published policy and Hardial Singh principles. It recognized that prolonged detention caused by detainees' own conduct, including refusal to cooperate with removal and pursuit of unmeritorious appeals, does not render detention unlawful.
Holding and Implications
The Secretary of State's cross appeal is allowed, setting aside the declaration that paragraph 2 of Schedule 3 prohibits a presumption in favour of detention.
The appellants' appeals are dismissed.
The court held that a blanket detention policy is unlawful, but a presumption in favour of detention consistent with statutory authority is lawful. The unpublished policy operated unlawfully due to non-publication and inconsistency with the published policy, but detention was lawful in the appellants' cases as it was not causally linked to the unlawful policy. No damages were awarded, and exemplary damages were deemed inappropriate. The decision confirms that detention policies must allow individual consideration and align with published policies, but unlawful policies do not automatically entitle detainees to damages if lawful detention would have occurred. The ruling clarifies the limits of lawful detention policy and the application of public law principles to immigration detention, without establishing new precedent beyond the facts.