R (SK (Zimbabwe)) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLORD BROWN,LORD KERR,Lord Rodger,LORD HOPE,LADY HALE
Judgment Date25 May 2011
Neutral Citation[2011] UKSC 23
Date25 May 2011
CourtSupreme Court
Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2011] UKSC 23

before

Lord Hope, Deputy President

Lord Rodger

Lady Hale

Lord Brown

Lord Kerr

THE SUPREME COURT

Easter Term

On appeal from: [2008] EWCA Civ 1204

Appellant

Raza Husain QC

Alex Goodman

Tom Hickman

(Instructed by Lawrence Lupin Solicitors)

Respondent

Robin Tam QC

Martin Chamberlain

(Instructed by Treasury Solicitors)

Intervener (Bail for Immigration Detainees)

Michael Fordham QC

Laura Dubinsky

(Instructed by Allen & Overy LLP)

LORD HOPE
1

This appeal was heard by this Panel on 10 and 11 February 2010. On 14 April 2010, while we were still considering our decision upon it, we were asked to consider applications for permission to appeal in two other cases in which foreign national prisoners had been detained pending their deportation after completing their sentences of imprisonment. Walumba Lumba, a citizen of the Democratic Republic of Congo, sought permission to appeal from a decision of the Court of Appeal [2010] EWCA Civ 111, [2010] 1 WLR 2168, dismissing his appeal from a decision of Collins J [2008] EWHC 2090 (Admin) on his claim for judicial review to refuse him a declaration that his detention by the Secretary of State for the Home Department was unlawful, for a mandatory order for his release and for damages. Mr Lumba together with Kadian Mighty, a citizen of Jamaica, also sought permission to appeal against the Court of Appeal's decision dismissing their appeals from a decision of Davis J [2008] EWHC 3166 (Admin) to dismiss their claims for judicial review of the Secretary of State's decision to detain them prior to their deportation and for damages for unlawful detention.

2

We decided to give permission to appeal in both cases, and a direction was given that the appeals should be heard by a panel of nine Justices. As there was plainly a close relationship between the issues raised in those cases and this, we decided to withhold delivery of our judgments in this case until after the decision of nine Justices in the cases of Mr Lumba and Mr Mighty had been given. Following the delivery of the judgment of their cases in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 on 11 March 2011 the parties were invited to make written submissions in light of that judgment. Having received and considered their submissions, we are now in a position to give our judgment in this case.

3

The appellant is a national of Zimbabwe. He entered the United Kingdom with leave as a visitor and was then given leave to remain for one year as a student. But he overstayed his leave and, following his conviction for several criminal offences, he was sentenced to a period of imprisonment. The Secretary of State decided that he should be deported. On 8 March 2006 he was detained pending the making of a deportation order. He remained in detention for 27 months until 13 June 2008 when he was released on bail by the Asylum and Immigration Tribunal. On 12 November 2007 while still detained he sought judicial review by means of a mandatory order for his immediate release, a declaration that he was unlawfully detained and damages.

4

On 25 January 2008 Munby J granted a declaration that the appellant had been detained unlawfully for various distinct periods amounting to about 19 months and he gave directions for the assessment of damages: 2008 EWHC 98 (Admin). But he declined to make an order for his release. The Secretary of State appealed against the declaration. The appellant appealed against the refusal of an order for his release, but he was later granted bail and that appeal was not proceeded with. On 6 November 2008 the Court of Appeal (Laws, Keene and Longmore LJJ) allowed the Secretary of State's appeal, holding that the appellant's detention had been lawful throughout. It remitted a new point which had been raised about the legality of the appellant's detention during periods when Munby J held that he was lawfully detained for determination by the High Court: 2008 EWCA Civ 1204, 2009 1 WLR 1527. The appellant now appeals to this court against the decision by the Court of Appeal that he is not entitled to damages for false imprisonment.

Anonymity

5

The appellant has been referred to hitherto in these proceedings as SK (Zimbabwe). Mr Tam QC for the respondent invited the court to maintain the order for the appellant's anonymity in accordance with the practice for asylum cases recognised by the Court of Appeal. He suggested that references in the appellant's application for asylum might expose him to risk if he were to be returned to Zimbabwe. Mr Husain for the appellant on the other hand did not ask for the order to be maintained. He did not suggest that there were any reasons for concern in his case. He said that he adopted a position of neutrality on this issue.

6

There is no doubt that the court has power to make an anonymity order to restrain publication of a person named in its proceedings. In an extreme case, where he or his family are in peril of their lives or safety, this may help to secure his rights under articles 2 and 3 of the European Convention on Human Rights: In re Guardian News and Media Ltd 2010 UKSC 1, 2010 2 WLR 325, para 26. Those are the rights that are most likely to be relevant if he is seeking asylum. It may also be made to secure that other persons, such as the press, show respect for his private and family life under article 8 of the Convention. But in such cases the person's article 8 rights must be balanced against the article 10 rights of the press and the general public interest in his being identified: In re Guardian News and Media Ltd, para 76. As the decision in that case shows, however, much will depend on the circumstances of each case. It is no longer the case that all asylum seekers as a class are entitled to anonymity in this Court. The making of such an order has to be justified.

7

I am not persuaded that an order for the appellant's anonymity is justified in this case. It must be recognised, of course, that lifting the order for his anonymity is not entirely without risk. It is rarely possible to predict with complete confidence what risks a failed asylum seeker will face when he is returned to his home country. But the position that the asylum seeker himself adopts will always be an important factor. He is likely to be in the best position to assess the risks and to say whether or not he needs anonymity for his protection. His counsel, Mr Husain, is very experienced in these matters and well able to form a sound judgment as to whether this is necessary or desirable. I would have expected him to inform the court if there were any grounds at all for wishing to preserve the appellant's anonymity. Had he done so I would, of course, have given a good deal of weight to his submissions. As it is, in view of the position that he has adopted on the appellant's behalf, I am not persuaded that there is anything to prevent his being identified in this case. I would set aside the anonymity order, and name the appellant as Shepherd Masimba Kambadzi.

The appellant's case

8

The context for the appellant's claim of damages for false imprisonment is provided by the provisions for the regulation of entry and stay in the United Kingdom which are set out in Part 1 of the Immigration Act 1971, as amended. His case, put very simply, is that the discretionary power to detain that is vested in the Secretary of State by paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act was not exercised throughout his period of detention in the way it should have been according to the published policy, that for periods when his detention was not reviewed in accordance with the policy it was not authorised and that he is entitled to damages for false imprisonment because his continued detention was unlawful during those periods. A description of the statutory background and the system which, according to his own policy, the Secretary of State had undertaken to operate provides the starting point for an examination of this argument. The facts of this case are best understood in the light of that background.

The statutory background

9

Section 4 of the 1971 Act provides that the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and that the power to give leave to remain in the United Kingdom, or to vary any leave, shall be exercised by the Secretary of State. Section 3(5) renders a person who is not a British citizen liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Section 4 gives effect to Schedule 2, paragraph 1(3) of which provides:

"In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State."

10

Section 5(3) of the 1971 Act gives effect to Schedule 3 with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and the detention and control of persons in connection with deportation. Paragraph 2 of Schedule 3 appears under the heading "Detention or control pending deportation". It provides in subparagraphs (2) and (3):

"(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not a detained person in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State...

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