SK (Zimbabwe) v SSHD: Supreme Court’s awaited judgment

R (on the application of SK (Zimbabwe)) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) was heard by the UKSC on 10 February 2010 on appeal from the Court of Appeal.

In this case where the SSHD was the Respondent the core issue  before the UKSC was whether a person is unlawfully detained by reason of the Secretary of State’s failure to carry out regular reviews of their detention.

The simple facts of this case are that the Appellant (SK) is a Zimbabwean national who was detained by the SSHD while his deportation, on the basis that he was an unlawful overstayer who was likely to abscond, is pending. SK sought judicial review of his detention alleging that it was unlawful in light of a failure to carry out regular reviews. SK, who entered  the UK as a visitor in 2002, has been in the United Kingdom without leave since 30 April 2004.

On 9 December 2005 he was convicted on two counts of common assault and one count of sexual assault on a female, and on 24 January 2006 he was sentenced to twelve months’ imprisonment and ordered to be registered as a sex offender for five years. The sentencing judge made no recommendation for deportation pursuant to section 6 of the Immigration Act 1971.

On 7 March 2006 the SSHD decided to make a deportation order against SK. On 8 March 2006, the next day, SK became entitled to be released from custody as regards his criminal sentence, but from that date on he was in detention at the direction of the Secretary of State pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971.

Prior to the Court of Appeal’s decision on 6 November 2008, on 25 January 2008 in the High Court Munby J had ruled that SK’s (i) detention during periods as specified was unlawful; (ii) claim for mandatory order requiring discharge from detention stood dismissed; (iii) claim for damages would be stayed pending appeal. Munby J granted permission to appeal to both SK and the SSHD. SK had advanced his case on the Detention Centre Rules 2001 which were to be read conjunctively with Chapter 38 of the Manual on Detention.

In the Court of Appeal on 6 November 2008 Laws, Keene and Longmore LJJ allowed the SSHD’s appeal against Munby’s declaration that SK’s detention was unlawful. For Munby J the review of SK’s detention was a condition precedent to its legality. Accordingly, he ruled that:

“39. So, following the 28 day review on 6 April 2006, there should have been monthly reviews in each of the remaining 9 months in 2006, in each of the 12 months in 2007 and, finally, on 6 January 2008. Leaving on one side the reviews which should have taken place between 10 and 30 March 2006, there should therefore, in all, have been 22 monthly reviews, the first on 6 April 2006 and the most recent on 6 January 2008. In accordance with paragraph 38.8 of the [Manual], the first two of these (April and May 2006) could be carried out by an HEO. The next two (June and July 2006) should have been carried out by an SEO/HMI, the next four (August – November 2006) by the Assistant Director/Grade 7, the next three (December 2006 – February 2007) by the Deputy Director and the most recent eleven (March 2007 – January 2008) by the Director.

“40. The disgraceful fact is that in the whole period from 9 March 2006 to the hearing on 18 January 2008 there were only ten reviews, only six of which (those in January, May, July, August and October 2007 and in January 2008) were conducted by an official at the correct level of seniority. Even worse, the first review did not take place until late January 2007. So there was no review at all during the first ten months of SK’s detention!”

Critical to the extreme of the SSHD and the Home Office Munby J also said that:

“49. So SK has had only four of the 22 reviews to which he was entitled. And on top of this, with the sole exception of the ‘Monthly Progress Report to Detainees’ dated 24 May 2007, every ‘Monthly Progress Report to Detainees’ sent to SK seems to have pre-dated the actual decision. The casual mendacity of a system under which the written reasons for detention required by rule 9(1) of the Detention Centre Rules 2001 to be sent to detainees are dated and signed by junior officials before the decisions have in fact been taken is concerning. To be specific, and by way of example (there are too many others): the ‘Monthly Progress Report’ which SK received dated 15 August 2007 would plainly have conveyed to him that his continuing detention had been reviewed and approved by the Director on or shortly before 15 August 2007. In fact, as we know, the actual decision was not taken until 30 August 2007. So the document SK received was wholly misleading.

“50. Thus the allegation made on behalf of the Secretary of State, not just in the letter of 9 November 2007 but persisted in as recently as in the detailed grounds of defence dated 14 December 2007, that SK’s detention has been ‘regularly reviewed’ is at best tendentious. How such an assertion could be made in the light of what Mr Goodman correctly characterises as the Secretary of State’s blatant failure to follow her own policy in relation to review I do not begin to understand…”

Munby J was very critical of the machinery of the state and its failure to comply with institutional standards which itself recognised as necessary for a democratic society to exist. But despite all that Munby J found wrong with the SSHD’s behaviour the Court of Appeal remained unsatisfied with the approach taken by the judge.

The Court of Appeal took the view that the Detention Centre Rules 2001, which were made under various provisions in the Immigration and Asylum Act 1999, namely sections 148(3), 149(6), 152(2) and (3), 153 and 166(3) and certain parts of Schedules to that Act did not curtail the SSHD’s power to detain a person indefinitely while their deportation was pending under schedule 3 paragraph 2(2) of the Immigration Act 1971.

The Court of Appeal’s reasoning on this point stemmed from the observation that SK’s detention was not authorised under section 34 of the Police and Criminal Evidence Act 1984 and the Roberts case. Their Lordships held that despite grave breaches of rule 9 of the 2009 Rules and Chapter 38 of the Manual SK’s detention pending deportation under the Immigration Act 1971 was lawful.

In the Court of Appeal, Laws LJ (at [25]) took the view that:

“Munby J was in my judgment wrong to hold, as I understand him to have done at paragraph 68 of his judgment, that such compliance was “a necessary prerequisite to the continuing legality of the detention”. Breach of the Rules or Manual might attract other remedies in public law: indeed on the judge’s findings I should have thought that the claimant would be entitled to a declaration that the Secretary of State had unlawfully failed to comply with both. However that has not been sought, and even if it had been its availability would not of itself turn a paragraph 2(2) detention into a false imprisonment.”

As stated above SK’s appeal to the UKSC was heard in February 2010 by Lord Hope of Craighead, Lord Rodger of Earlsferry, Lady Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Kerr of Tonaghmore and their written opinions on the matters set out above are eagerly awaited by the legal fraternity. However, it remains to be seen when the hand down date of the Supreme Court’s judgment will be. The Court will, no doubt, hand down its eagerly awaited ruling sometime soon in the new year.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 5, Court of Appeal, Detention, ECHR, UKSC, Zimbabwe and tagged , , , . Bookmark the permalink.

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