While the earlier judgment of SK (Zimbabwe) (UKSC 2009/0022) is still pending (update: the UKSC’s decision in that case was handed down on 25 May 2011 and the latest post in that case is available here), the UKSC will yet again review the lawfulness of the SSHD’s detention powers. WL (Congo) and KM (Jamaica) was about fundamental principles of constitutional importance which are connected to the SSHD’s ability to deprive a person of their liberty contrary to Article 5 of the Convention.
In its earlier judgment – in WL (Congo) and KM (Jamaica)  EWCA Civ 111 – the Court of Appeal took the view that if a person’s detention was potentially lawfully authorised, then in that event their “detention was not unlawful by reason of the adoption and application of [a] hidden unlawful policy.”
The UKSC was particularly interested in the approach taken by the Court of Appeal in relation to the legality of the detention of individuals which is grounded in unpublished state policies.
The SSHD was, between April 2006 and 9 September 2008, bound by a published policy under which immigration detention pending deportation warranted a presumption which favoured the release of foreign national prisoners (FNP) prior to removal. Controversially, in monumental dereliction of her duties the SSHD failed to act in accordance of her published policy and she reversed the presumption favouring the release of FNPs by using what she has described as her “unpublished policy”.
Both WL and KM were black men and have quite adverse criminal antecedents.
Both appellants argued their cases on well established constitutional principles. Firstly, it is argued by them that there is no precedent which justified their detention. This, of course, repudiates the English system of common law under which unlawful detention without precedent or regulatory policy is forbidden. Moreover, they also argued that the SSHD’s “unpublished” policy was incompatible with Article 5 of the Convention.
Palpably the SSHD did not share this view and considered the appellants’ detention to be justified as WL and KM were convicted criminals.
The UKSC’s decision had have much wider public law implications than the immigration context in which it is set. The appellants made claims for exemplary damages because KM was in detention for a year-and-a-half (he had a Class A drug conviction and was convicted of 14 robberies) and WL was in detention for four-and-half years (he had convictions for actual and grievous bodily harm). The appeal allowed the Supreme Court to issue clear guidelines about the “unpublished” detention policies used by the SSHD.
Immigration officers acting under the Immigration Act 1971 enjoy much wider powers of arrest and detention than those accorded to the Police under the Police and Criminal Evidence Act 1984. Therefore, when possible the SSHD uses immigration detention where police detention or incarceration in prison following conviction is not available or have been exhausted.
Just to update this post. On 23 March 2011 the UKSC handed down its judgment which can be viewed here.
The court considered the following issues: (a) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error; (b) if so, whether detention on the basis of such a policy is unlawful in circumstances where the appellants would have been lawfully detained in any event; (c) if so, whether the appellants are entitled to recover more than nominal damages; (d) whether the appellants are entitled to an award of exemplary damages; and (e) in the case of Walumba Lumba, whether there has been a breach of the Hardial Singh principles.
The Court also held that was unlawful in public law for the SSHD to maintain an unpublished policy which was inconsistent with her published policy.
After considering the above issues the court held that (a) the Secretary of State was liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties (Lords Phillips, Brown and Rodger dissenting); (b) that the appellants were, however, only entitled to nominal damages assessed at £1 (Lords Hope, Walker and Lady Hale dissenting); (c) they were not entitled to exemplary damages; (d) the court remitted to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the principles in R v Governor of Durham Prison, Ex p Hardial Singh  1 WLR 704 (the Hardial Singh principles).
In so far as the lawfulness of the detention was concerned the court unanimously held that the Secretary of State could lawfully operate a policy that set out the practice that would normally be followed in deciding whether or not to detain FNPs pending their deportation as long as the principles enshrined in Art 5(1)(f) of the Convention were respected.