R (Walumba Lumba and another) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD DYSON,LORD HOPE,LORD WALKER,LADY HALE,LORD COLLINS,LORD KERR,LORD PHILLIPS,LORD BROWN,Lord Rodger
Judgment Date23 March 2011
Neutral Citation[2011] UKSC 12
Date23 March 2011

[2011] UKSC 12

THE SUPREME COURT

Hilary Term

On appeal from: 2010 EWCA Civ 111

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lady Hale

Lord Brown

Lord Collins

Lord Kerr

Lord Dyson

Walumba Lumba (previously referred to as WL) (Congo) 1 and 2
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Kadian Mighty (previously referred to as KM) (Jamaica)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellant (WL)

Raza Husain QC

Laura Dubinsky

Tom Hickman

Alex Goodman

(Instructed by Public Law Project)

Respondent

Michael Beloff QC

Robin Tam QC

Charles Bourne

Jeremy Johnson

(Instructed by Treasury Solicitors)

Appellant (KM)

Raza Husain QC

Martin Westgate QC

Alex Goodman

(Instructed by Lawrence Lupin Solicitors)

Respondent

Michael Beloff QC

Robin Tam QC

Charles Bourne

Jeremy Johnson

(Instructed by Treasury Solicitors)

Intervener (JUSTICE)

Rabinder Singh QC

Elizabeth Prochaska

(Instructed by Freshfields Bruckhaus Deringer LLP)

Intervener (Bail for Immigration Detainees)

Michael Fordham QC

Graham Denholm

(Instructed by Allen & Overy LLP)

LORD DYSON

Introduction

1

These two cases raise a number of important issues in relation to the detention pending deportation of foreign national prisoners ("FNPs") following the completion of their sentences of imprisonment. Section 3(5)(a) of the Immigration Act 1971 ("the 1971 Act") provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State "deems his deportation to be conducive to the public good". Schedule 3 to the 1971 Act provides in certain specified circumstances for the detention of such a person pending his deportation.

2

Walumba Lumba is a citizen of the Democratic Republic of Congo ("DRC") who entered the UK on 10 April 1994. He was convicted of a number of offences culminating in an offence of wounding with intent for which he was sentenced to 4 years' imprisonment on 12 January 2004. On 3 April 2006, the Secretary of State informed Mr Lumba of his intention to deport him under section 3(5)(a) of the 1971 Act. He was due to be released from prison on 23 June 2006, but by letter dated 22 June 2006 was notified that he was to be detained pending deportation. He left the United Kingdom voluntarily on 13 February 2011.

3

Kadian Mighty is a citizen of Jamaica. He arrived in the United Kingdom on 4 December 1992 and was given 6 months' leave to enter as a visitor. Thereafter, he made various unsuccessful applications for leave to remain. On 10 February 2003, however, he was granted indefinite leave to remain. He had been convicted of a number of offences, including possession of a Class A drug with intent to supply, for which on 27 June 2003, he was sentenced to 42 months' imprisonment. Following his release on licence, he committed a driving offence and was recalled to prison. He was finally released on 31 March 2006. On 10 May 2006, the Secretary of State informed Mr Mighty of his intention to deport him under section 3(5)(a) of the 1971 Act. On 19 May 2006, he was detained pending deportation because he was likely to abscond and his release was not conducive to the public good. He was released on bail on 28 July 2008.

4

Schedule 3 of the 1971 Act provides, so far as material:

"2. (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

(1A) Where–

(a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and

(b) he appeals against his conviction or against that recommendation,

the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.

(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 detained 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 pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph ( 1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)".

5

Between April 2006 and 9 September 2008, the Secretary of State's published policy on detention of FNPs under her immigration powers was that there was a "presumption" in favour of release, although detention could be justified in some circumstances. In fact, during this period the Secretary of State applied a quite different unpublished policy which was described as a "near blanket ban" by the Secretary of State, Ms Jacqui Smith, to the Prime Minister, Gordon Brown, on 19 September 2007 in a document entitled "Bail Proposal for Foreign National Prisoners" in which she said:

"Since April 2006, the BIA [("the Border and Immigration Agency")] has been applying a near blanket ban on release, regardless of whether removal can be achieved and the level of risk to the public linked to the nature of the FNP's original offence. By currently having no discretion to grant bail, the BIA has to regularly transfer FNPs around the Estate."

6

On 9 September 2008, the Secretary of State published a policy which included a "presumption" of detention and withdrew all references to a presumption of release. On 22 January 2009, following the decision of Davis J in the current proceedings, this policy was amended again to omit the reference to a presumption of detention and substitute a policy in favour of release from detention. It will be necessary to describe the policies and practices adopted from time to time in more detail later in this judgment.

The proceedings

7

Mr Lumba issued proceedings on 18 October 2007. He challenged the lawfulness of his detention on the grounds that he was no longer being detained pending deportation and that his continued detention was in breach of the principles stated by Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 ("the Hardial Singh principles"). He also claimed a declaration that his detention was unlawful, a mandatory order that he be released and damages. On 4 July 2008, Collins J gave an interlocutory judgment on part of the claim: [2008] EWHC 2090 (Admin). He did not make a decision in relation to Mr Lumba's past detention and reserved for a further hearing inter alia the questions of whether the operation of an unpublished policy had been unlawful and the past detention had been unlawful as a consequence. On 28 July 2008, Mr Lumba's claim was joined to four other cases in which the same points arose. One of these was the claim of Mr Mighty which had been issued on 29 May 2008.

8

The five cases were heard by Davis J on 11-14 November 2008. In an impressive judgment given on 19 December 2008 [2008] EWHC 3166 (Admin), he granted the claimants declarations that (i) paragraph 2 of Schedule 3 to the 1971 Act prohibits the Secretary of State from operating any policy in relation to the detention of FNPs which contains a presumption in favour of detention and (ii) it was unlawful for the Secretary of State to operate the policy introduced in April 2006 in that it was not sufficiently published or accessible until its publication on 9 September 2008. He dismissed the other claims, in particular the claims for damages for unlawful detention.

9

The appellants appealed and the Secretary of State cross-appealed against the first declaration. In a judgment of the court delivered by Stanley Burnton LJ, the Court of Appeal (Lord Neuberger MR, Carnwath and Stanley Burnton LJJ) ( [2010] 1 WLR 2168) allowed the cross-appeal and set aside the first declaration. They also varied the second declaration. Otherwise the appeals were dismissed.

The issues

10

The principal issues are as follows. (i) Were the detention policies that were applied to the appellants after April 2006 unlawful because (a) they were blanket policies (para 21 below) and/or (b) they were inconsistent with the published policies (para 26 below) and/or (c) they were not published policies (paras 27-38 below) and/or (d) they contained a "presumption" in favour of detention (paras 40-55 below)? (ii) If unlawful policies were applied to the appellants, was their detention unlawful in consequence (paras 56-89)? (iii) If their detention was unlawful, are the appellants entitled to more than nominal damages (paras 90-101 below)? (iv) Is Mr Lumba entitled to damages for unlawful detention on the grounds that, in his case, there has been a breach of the Hardial Singh principles? (paras 102-148 below) (v) Are the appellants entitled to an award of exemplary damages (paras 150-168 below)?

The policies in more detail

The published policies

11

The "presumption" of release had been entrenched in the Secretary of State's published policies since at least 1991. It appeared in the White Paper Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018), which was published in 1998 and again in 2002 in the White Paper Secure Borders, Safe Haven: Integration Diversity in Modern Britain (2002) (Cm 5387) which stated at...

To continue reading

Request your trial
670 cases
  • Sumaya Ghulam and Others v Secretary of State for the Home Department Equality and Human Rights Commission (Intervener)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 Octubre 2016
    ...section 96(2) under the rule of law pursuant to which there was a need for transparency recognised by Lord Dyson JSC in Lumba v SSHD [2011] UKSC 12; [2012] AC 245 at [34]–[36]. He submitted that, where the executive had a discretionary power, it must formulate and publicise a policy descri......
  • R Godwin Chaparadza v Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 Mayo 2017
    ...if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. Per Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12." 50 In the present case, for the reasons set out above, the Defendant was wrong to believe that ther......
  • Neshanthan (Cancellation or Revcation of ILR)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 17 Enero 2017
    ...In this respect, Mr Ahmed relied upon Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 (appellant) v SSHD (respondent) [2011] UKSC 12 where the Supreme Court said at [34]: “The rule of law calls for a transparent statement by the executive of the circumstances in which the broad......
  • Dylan Weller and Others v Associated Newspapers Ltd
    • United Kingdom
    • Queen's Bench Division
    • 16 Abril 2014
    ...submitted that there was no place in the law for vindicatory damages following the judgment of the Supreme Court in R(Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245. He submitted that damages should be modest, for the reasons set out in the judgment of ......
  • Request a trial to view additional results
3 firm's commentaries
  • Lloyd V Google LLC – Relief For The Data Sector? Mr John MacKenzie
    • United Kingdom
    • Mondaq UK
    • 28 Noviembre 2018
    ...merely to mark the commission of the wrong; this is wrong in principle: see R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 Working through the technical aspect of cookies and the potential for different claimants to take different approaches to their phone settings, ......
  • Flash Update - Tenants Cannot Assign To Their Guarantors
    • United Kingdom
    • Mondaq UK
    • 31 Marzo 2016
    ...are "old" leases, as defined by the Act. This case confirms comments made in the K/S Victoria Street v House of Fraser case [2011] All ER (D) 262. What hasn't There are a number of ways a guarantor can take over liability for a tenant's obligations. Many guarantee clauses allow th......
  • Clyde & Co Involved In Landmark Mental Health Court Of Appeal Victory
    • United Kingdom
    • Mondaq UK
    • 17 Febrero 2015
    ...the position, which had been set out by the Supreme Court in an immigration context (Lumba v. Secretary of State for the Home Department (2011) UKSC 12, 1 AC 245) that when assessing the tort of false imprisonment, the courts should seek to put the Claimant in the position he would have bee......
9 books & journal articles
  • Misfeasance in public office: a very peculiar tort.
    • Australia
    • Melbourne University Law Review Vol. 35 Nbr. 1, April 2011
    • 1 Abril 2011
    ...and battery claim was legitimately rights-centred, not loss-centred: at 975-6 [22]. Lumba v Secretary of State for the Home Department [2011] 2 WLR 671 held by majority that there should be no separate measure of 'vindicatory' or 'conventional' damages that were not nominal, compensatory or......
  • The use and Enforcement of Soft Law by Australian Public Authorities
    • United Kingdom
    • Federal Law Review Nbr. 42-1, March 2014
    • 1 Marzo 2014
    ...eg, R (Purdy) v Director of Public Prosecutions [2009] 1 AC 345, ('Purdy's Case'); R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12. 84 See Briti sh Oxygen [1971] AC 610. 85 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325, 334 (Deane J) ('Nevist......
  • Her treatment at and around the meeting was deplorable: might safeguarding itself constitute abuse?
    • United Kingdom
    • The Journal of Adult Protection Nbr. 15-2, April 2013
    • 5 Abril 2013
    ...EWHC 621 (Fam).VOL. 15 NO. 2 2013jTHE JOURNAL OF ADULT PROTECTIONjPAGE 105 R (Lumba) v. Secretary of State for the Home Department [2011] 2 WLR 671.Rv. London Borough of Islington, ex parte Rixon [1997] ELR 66.About the authorDavid Hewitt is a Judge of the First-tier Tribunal, in both the H......
  • Retreating to the History of Judicial Review?
    • United Kingdom
    • Federal Law Review Nbr. 47-2, June 2019
    • 1 Junio 2019
    ...if it had known of (and avoided) the flaw in theoriginal detention process: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245; R(Kaiyam) v Secretary of State for Justice [2015] AC 1344; R (O) v Secretary of State for the HomeDepartment [2016] 1 WLR 1717. The Full Court ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT