Kamoka & Ors v The Security Service And Others

Factual and Procedural Background

There are two sets of applications before the court: the defendants' applications under section 6 of the Justice and Security Act 2013 ("JSA 2013") seeking declarations that closed material procedures may be used in relation to claimants 1-10 ("C1-10"); and, secondly, applications on behalf of claimants 1-5 ("C1-5") under CPR Part 24 seeking summary judgment or striking out of the Defence concerning false imprisonment and trespass claims.

The claims of C1-5 have a complex procedural history. Their claims were previously struck out as an abuse of process but restored on appeal. The factual background involves allegations related to the unlawful rendition, detention, and mistreatment of the claimants, who are of Libyan origin and alleged associates of the Libyan Islamic Fighting Group ("LIFG"). They were detained following Notices of Intention to Deport in late 2005, in the context of a Memorandum of Understanding on Deportation with Assurances ("MoU") between the UK and Libya.

Appeals to the Special Immigration Appeals Commission ("SIAC") succeeded regarding the adequacy of the MoU protections, leading to the release of C1-5 on bail and subsequent Control Order proceedings for some claimants. The claimants have filed Amended Consolidated Particulars of Claim which locate their various claims in one document, though consolidation has not yet been decided.

The claimants allege unlawful detention based on the defendants' involvement in rendition and interrogation practices, and that critical information was either withheld or irrationally disregarded by the Home Secretary in the deportation decisions. The defendants deny unlawfulness, asserting the Home Secretary acted in good faith and that the MoU was reliable.

The court has also considered evidence including an apology from the Attorney General acknowledging failings in the UK Government's conduct, and a report from the Intelligence and Security Committee of Parliament ("ISC Report"). However, the ISC Report is subject to Parliamentary privilege and is inadmissible for the purposes of the summary judgment application.

The defendants rely on evidence from a Home Office official, Mr. Nick Toogood, addressing the context and timing of information available to the Home Secretary and the Foreign and Commonwealth Office ("FCO") regarding Libya and the MoU. The court notes limitations and inconsistencies in the defendants' open evidence.

Following oral submissions and evidence, the court has determined that the evidential picture on open material is limited, and it is difficult to draw adverse inferences against the defendants at this stage. The defendants have raised a real prospect of success, leading to dismissal of the summary judgment application.

Legal Issues Presented

1. The correct approach to the statutory scheme governing deportation and detention under the Immigration Act 1971.
2. The scope and application of the principle established in Lumba regarding public law breaches and false imprisonment claims.
3. Whether binding Court of Appeal authority precludes the claimants' claims.
4. Whether authorities such as Nasseri defeat the claims at this stage.
5. Whether the court may properly determine the claimants' essential submission on this CPR Part 24 application based on open material.

Arguments of the Parties

Appellant's Arguments

• The decision to deport C1-5 was unlawful because the Home Secretary failed to take into account relevant considerations, specifically the covert involvement of UK Security Services in renditions which undermined the reliability of diplomatic assurances from Libya.
• This failure constitutes an elementary public law error entitling the claimants to summary judgment on false imprisonment and trespass claims under CPR Part 24.
• Reliance was placed on Supreme Court authorities including Lumba, Kambadzi, and B (Algeria) to support their submissions.
• The Home Secretary did not properly consider safety on return at the deportation decision stage, contrary to legal requirements.

Defendant's Arguments

• Binding Court of Appeal decisions preclude the claimants' claims.
• The issue of safety on return arises only at the deportation order stage, not at the initial decision to deport.
• A failure to take relevant considerations into account is a procedural error which does not, without more, amount to a violation of Article 3 of the European Convention on Human Rights.
• Even if legal defences fail, the court cannot summarily determine complex factual and inferential issues on wholly open material under CPR Part 24.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the statutory framework under the Immigration Act 1971, emphasizing the two-stage process of deciding to deport and then making a deportation order. Detention pending deportation is lawful only if there is a lawful decision to deport. The court rejected the defendants' submission that Article 3 Convention rights issues arise only at the deportation order stage, holding that such issues must inform the initial decision to deport.

The court analyzed the principle from Lumba that unlawful administrative decisions are nullities and give rise to claims for false imprisonment without the need to prove causation. The court extended this principle to the decisions to deport, as detention was consequential upon those decisions.

Binding Court of Appeal authority, particularly Ullah, was considered but effectively overruled by later authority, notably D v Home Office, which the court followed. The court distinguished Draga and Gaviria-Manrique as not precluding the claimants' claims.

The court rejected the defendants' argument, drawing on the Nasseri line of authority, that procedural errors alone cannot establish a substantive breach of Convention rights. The court held that the claimants' case involves a failure to ask the right questions and exclusion of material evidence, which undermines the integrity of the decision-making process and engages substantive rights.

On the evidential front, the court noted the limitations of the open evidence, including the defendants' selective reliance on certain materials and the inadmissibility of the ISC Report. The court acknowledged internal inconsistencies in the defendants' case and the difficulty in drawing adverse inferences on open material alone.

Consequently, the court concluded that the defendants have raised a sufficient evidential case on open material to have a real prospect of success. The summary judgment application was therefore dismissed, but the court remained open to further consideration of closed material and evidence.

Holding and Implications

The court's final decision is to DISMISS the claimants' application for summary judgment under CPR Part 24.

The direct effect is that the claimants' false imprisonment and trespass claims will not be resolved on the basis of open material alone at this stage. The defendants retain a real prospect of success, and the matter will proceed with further disclosure and consideration, including closed material procedures under section 6 of the JSA 2013.

No new precedent was established by this decision; rather, the court applied existing principles to the evidential and procedural context of the case. The decision emphasizes the necessity of a full evidential picture, including closed material, before adverse inferences or summary determinations can be made in such complex national security-related litigation.