Case Comment: Shepherd Masimba Kambadzi (FC) (Appellant) v SSHD (Respondent) [2011] UKSC 23

The summarised facts of this case are that Shepherd Masimba Kambadzi (“SMK”), a national of Zimbabwe, arrived in the United Kingdom as a visitor with 6 months’ leave to enter on 30 October 2002. Subsequently, his leave was extended until 9 December 2005. On 24 January 2006 SMK was sentenced to a total of 12 months’ imprisonment and ordered to be registered as a sex offender for 5 years. No recommendation for deportation was made by the sentencing judge.

On 8 March 2006 SMK’s sentence of imprisonment expired and thereafter he was detained by the SSHD under the powers contained in paragraph 2 of Schedule 3 to the Immigration Act 1971. On 24 March 2006 SMK claimed asylum which the SSHD refused. Subsequently, the Tribunal decided that SMK’s asylum claim was bogus and his appeal rights became exhausted on 16 July 2007. On 4 May 2007 SMK was moved from HMP Lincoln to Campsfield IRC and by 28 July 2007 he was detained in Harmondsworth IRC. On 24 August 2007 the SSHD made and served a deportation order on SMK.

SMK was detained for a total of 27 months. He was eventually released on bail on 13 June 2008. He is still in the UK because of the appalling conditions in Zimbabwe.

Judgments have been handed down in SMK’s case (i) by the High Court on 25 January 2008; (ii) by the Court of Appeal on 6 November 2008; and (iii) by the UKSC on 25 May 2011.

In January 2008 Munby LJ (as he now is) – “an avid supporter of open justice” – did not find it difficult to lambast the SSHD and UKBA (which enforces her iron will) in the judicial review which SMK brought as SK (Zimbabwe) in the matter of his unlawful detention.

Prior to the hearing before Munby J (as he then was) in January 2008, SMK had been entitled to 22 reviews of the lawfulness of his detention in addition to the initial five reviews in the first month, whereas, up to the date of the hearing, in fact SMK was only afforded 10 reviews – only six of which were conducted by officials of the required seniority.

When I first read Munby J’s judgment I thought to myself, “Wow he is really quite angry!” Yet the judge, who held SMK’s detention to be unlawful, did not make an order for release.

That is not too surprising given that in the UKSC Lady Hale remarked (at [61]) that SMK “was not a very good person” who had “overstayed his welcome” and “abused our hospitality by committing sexual assaults.”

Therefore, she did not find it surprising that the “Home Secretary wishes to deport him”. She also explained (at [65]) that the SSHD was unable to deport SMK because removals to Zimbabwe were temporarily suspended (but these have resumed since then). However, owing to future prospects of SMK’s removal his “detention was substantively justified in accordance with the Hardial Singh principles.”

Critically, the following issues arose for the UKSC in SMK’s case. Firstly, whether the SSHD’s failure in complying with the procedural requirements contained in her policy (which related to the detention of foreign national prisoners – “FNPs”) rendered the prisoners’ detention unlawful. Secondly, if the detention was unlawful, would the detainee be entitled to a claim in tort for false imprisonment and should they be released.

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

The UKSC upheld the High Court’s findings that reviewing detention was a necessary prerequisite to its continuing legality. Lord Hope affirmed Munby’s J’s judgment where (at [137]) the judge had aptly concluded that “I trust that no judge will ever again be faced with such a state of affairs.” Therefore, as explained by the High Court, compliance with the Rules and Manual as such is a condition precedent to a lawful detention pursuant the Immigration Act 1971.

In quite stark contrast, the Court of Appeal had taken the rigid view that the Detention Centre Rules 2001, which were made under various provisions contained 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, in the absence of authorisation or adequate review, 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 had held that despite grave breaches of rule 9 of the 2009 Rules and Chapter 38 of the Manual, SMK’s detention pending deportation under the Immigration Act 1971 was lawful.

The Court of Appeal’s reasoning on this point stemmed from the observation that SMK’s detention was not authorised under section 34 of the Police and Criminal Evidence Act 1984 and the Roberts case which Laws LJ (at [24]) had described as “having influenced the judge [Munby J]”.

Curiously, there was no mention of PACE 1984 or the Roberts case in the High Court’s decision in the legal framework paragraphs (see at [5]-[18]). Instead, it was Mr Goodman on behalf of SMK who mentioned the Roberts case to Munby J – who (at [50]) did not consider it to help SMK’s case.

Historically, British Home Secretaries have been prone to scandals. David Blunkett and Charles Clarke both went out with a real whimper after their tough talk. Blunkett was found to have “fast-tracked” his lover Kimberly Quinn’s nanny’s settlement application. Moreover, Jacqui Smith was embarrassed by her husband’s adult movies and the Standards Commissioner found her to be in breach of the rules in claiming expenses. Interestingly, the Home Office has also been accused by the press of employing illegal workers.

Clarke is connected to SMK’s case more directly because it was his administration which was benevolent enough to release FNPs (subsequent to serving their prison terms) without any sanction. The policy was not exclusively Clarke’s but it was him who took a real beating over it. Ultimately he resigned. By way of comparison, the present SSHD – the lady proudly wearing a designer made, möglicherweise französisch/un bonnet français peut-être?, “immigration cap”! – has done well thus far (but never say never) to avoid a properly sexed up scandal extraneous of her retrograde immigration policies.

The detention of FNPs under the SSHD’s unpublished policy began in April 2006 following the scandalous revelation that over a thousand FNPs had been released (without any consideration for their deportation) after serving prison sentences. Subsequent to this revelation, the bicycle riding Charles Clarke hesitantly gave way to a more serious Dr John Reid who operated a sinister blanket policy of detention which was entirely at odds with his own published policy which favoured temporary release or admission pending deportation – “A practice of blanket detention was then instituted with a ruthless determination that precluded consideration of the merits of any individual case” ( see Lord Hope at ([27]). The SSHD acted with such “ruthlessness” as it was feared that “illegal migrants and paedophiles” were “a toxic mix”. In the wake of the scandal, the press made a lot of the government’s blunder which acted disproportionately to restore lost confidence.

After hearing SMK’s appeal in early 2010, the UKSC postponed handing down its judgment pending its findings in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 where the Court allowed the appeal because the SSHD bore the public law duty to stick by her published policy unless she could concretely show otherwise.

In Lumba the Court held that (a) the SSHD 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 [1984] 1 WLR 704. In Lumba 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.

The Hardial Singh principles are that (i) the SSHD must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the SSHD will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention; and (iv) the SSHD should act with the reasonable diligence and expedition to effect removal.

Legal analysts have espoused different opinions in relation to the UKSC’s decision about the unlawfulness of detention in Lumba. Colin Yeo called it a “pyrrhic victory” which meant “that unlawful detention will continue.” Conversely, for Samantha Knights Lumba represented “a landmark victory on a point of utmost significance to the rule of law”. It is uncertain how much of UKSC’s wisdom is taken on board by the SSHD or her servants (whose simple conventional wisdom is to manifest illegality – “simple” because usually no one is watching). My view is that the Supreme Court’s jurisprudence is a bit too advanced for the UKBA and its private security companies – who are virtually running the detention centres – to absorb or care about: they are not lawyers and therefore they seek to enforce something (“the law”) which they do not, cannot and will not understand.

The second question before the UKSC – if the detention was unlawful, would the detainee be entitled to a claim in tort for false imprisonment and should they be released – has already answered by the Court in Lumba. In that case the UKSC explained that where there was justification for detention (even with the irregularities which Munby J described as “profoundly shocking”) and the SSHD failed to justify the said detention, then release was not suitable. In Lumba the appellants were entitled £1 in damages.

However, in SMK’s matter, Lord Hope (at [56]) did “not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award”. He also explained that public law duties are universal and must be applied equally to everyone – “from the most undeserving to the most vulnerable”. Lord Hope identified “obvious examples” of “the vulnerable” as children, people suffering from physical or mental illness and the victims of trauma and torture. Perhaps the victory is more than symbolic.

Lord Hope also explained that:

“It may be that the conclusion in this case will be that an award of nominal damages is all that is needed to recognise that the appellant’s fundamental rights have been breached. But that does not affect the issue of principle.”

The emollient aspect of such judgments (and others such as HJ) is that those who know them may feel better about the dignity and supremacy of the rule of law as interpreted by the highest court in the land. Practically, however, any activity related to the UKBA will involve time and expense and claiming damages from the agency for unlawful detention is no different.

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, Asylum, Court of Appeal, Detention, ECHR, Enforcement, High Court, Immigration Law, Private Prisons, Removals, UKBA, UKSC, Zimbabwe and tagged , , , , , . Bookmark the permalink.

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