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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Stanley Burnton
Judgment Date19 February 2010
Neutral Citation[2010] EWCA Civ 111
Docket NumberCase No: C4/2009/0159, C4/2009/0157, C4/2008/2099
Date19 February 2010

[2010] EWCA Civ 111

[2008] EWHC 3166 (Admin)

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH (ADMIN)

Mr Justice Davis

Before: The Master of the Rolls

Lord Justice Carnwath

and

Lord Justice Stanley Burnton

Case No: C4/2009/0159, C4/2009/0157, C4/2008/2099

Between
The Queen on the Application of WL (Congo) 1 and 2
and
The Queen on the Application of KM (Jamaica)
Appellants
and
The Secretary of State for the Home Department
Respondent

Raza Husain and Alex Goodman (instructed by The Public Law Project) for the Appellant WL

Raza Husain, Laura Dubinsky and Andreas Pretzell (instructed by Lawrence Lupin) for the Appellant KM

Robin Tam QC, Charles Bourne and Jeremy Johnson (instructed by the Treasury Solicitor) for the Respondent

Hearing dates: 30 November, 1 & 2 December 2009

Lord Justice Stanley Burnton

Lord Justice Stanley Burnton:

Introduction

1

On 19 December 2008 Davis J gave judgment on claims for judicial review brought by five lead claimants who alleged that they had been unlawfully detained by the Home Secretary as a result of his application of an unpublished policy, introduced in April 2006, for the detention of convicted foreign nationals following the completion of their prison sentences with a view to or for the purposes of their being deported. The unpublished policy was inconsistent with the Secretary of State's published policy and was also alleged to be inconsistent with the statutory provision relied upon to justify the claimants’ detention, namely paragraph 2 of Schedule 3 to the Immigration Act 1971. The claimants whose claims were before the judge sought, among other relief, damages, including exemplary damages, for their alleged false imprisonment.

2

Between April 2006 and 9 September 2008, the published policy of the Home Secretary provided that a foreign national prisoner (an “FNP”) should continue to be detained following completion of his sentence of imprisonment only when his continued detention was justified. In other words, there was a presumption of release from detention. Before the judge it was admitted by the Home Secretary that the Home Office had indeed applied an unpublished and undisclosed policy instead of his published policy. There was an issue before the judge as to whether the policy in fact operated by the Home Office was a blanket detention policy, or whether it was a presumptive policy that allowed such prisoners to be released pending deportation (or a decision as to their deportation) if their release was justified. A new policy was published on 9 September 2008. The judge found that the policy in fact operated before that date was a presumptive rather than a blanket policy. He granted two declarations:

(1) A declaration that paragraph 2 of Schedule 3 to the Immigration Act 1971 prohibits the Home Secretary from operating any policy in relation to the detention of FNPs pursuant to that provision pending their deportation which contains a presumption in favour of detention.

(2) A declaration that it was unlawful for the Home Secretary to operate the policy introduced in April 2006 in relation to the detention of FNPs pending their deportation, in that it was not sufficiently published or accessible until its publication on 9 September 2008.

3

Apart from those declarations, the judge dismissed the claims for judicial review of four of the claimants; the claim of the fifth claimant was adjourned. The claims for damages for unlawful detention were also dismissed.

4

We have before us appeals against his order made in consequence of his judgment by two of the claimants whose claims he dismissed, namely WL (Congo) and KM (Jamaica), and a cross-appeal by the Home Secretary against the first of the declarations he made. In addition, WL appeals against the order of Collins J dated 17 July 2008 dismissing his claim for an order for a mandatory order directing his discharge from detention.

5

This is the judgment of the Court, to which each of its members has contributed, on those appeals and the cross-appeal.

6

At the beginning of his judgment Davis J said that the claims raised matters which were “in some respects unedifying and in other respects disquieting”. We agree: indeed, we consider that the judge's words were if anything an understatement. The matters to which we refer reflect very badly on the Home Office in the period in question, during which there was at a high level a failure to have proper regard to, if not a disregard of, the legal obligations of the Department, and the failure does not appear to have been attributable merely to oversight.

7

Before us, argument was divided between submissions on issues that are generic to the appeals and submissions on issues relating to individual appellants. We shall divide our judgment similarly.

8

References below to the detention of FNPs are, unless otherwise indicated, to detention after completion of any sentence of imprisonment pending deportation or a decision as to their deportation, in other words to detention that is not authorised by any such sentence. References to detention pending deportation include detention pending a decision on the part of the Secretary of State whether to make a deportation order and also pending any appeal or application for judicial review seeking to avoid deportation.

A. GENERIC ISSUES

The legislative background

9

Sections 3(5) and 3(6) and section 5 of the Immigration Act 1971 (as amended) are as follows:

3.(5) A person who is not a British citizen is liable to deportation from the United Kingdom if –

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) another person to whose family he belongs is or has been ordered to be deported.

(6) Without prejudice to the operation of subsection (5) above, a person who is not a [British citizen] shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.

5.(1) Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

10

Further extended powers of detention are conferred by subsequent legislation; they are not relevant for present purposes. Schedule 3 of the 1971 Act is of central importance to these appeals.

1.—(1) Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either—

(a) a country of which he is a national or citizen; or

(b) a country or territory to which there is reason to believe that he will be admitted.

….

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 or 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).

11

The implied restrictions on the power to detain for the purposes of deportation were set out by Woolf J in Hardial Singh [1984] 1 WLR 704, 706:

Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Second, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable...

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