R (Walumba Lumba and another) v Secretary of State for the Home Department
 UKSC 12
THE SUPREME COURT
On appeal from: 2010 EWCA Civ 111
Lord Phillips, President
Lord Hope, Deputy President
Raza Husain QC
(Instructed by Public Law Project)
Michael Beloff QC
Robin Tam QC
(Instructed by Treasury Solicitors)
Raza Husain QC
Martin Westgate QC
(Instructed by Lawrence Lupin Solicitors)
Michael Beloff QC
Robin Tam QC
(Instructed by Treasury Solicitors)
Rabinder Singh QC
(Instructed by Freshfields Bruckhaus Deringer LLP)
Intervener (Bail for Immigration Detainees)
Michael Fordham QC
(Instructed by Allen & Overy LLP)
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.
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.
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.
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.
(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)".
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."
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.
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 ("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: (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.
The five cases were heard by Davis J on 11-14 November 2008. In an impressive judgment given on 19 December 2008 (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.
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) ( ) allowed the cross-appeal and set aside the first declaration. They also varied the second declaration. Otherwise the appeals were dismissed.
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
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 para 4.76:
"Our 1998 White paper set out...
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