When detaining foreign criminals the rules are the rules, says Supreme Court
2 June 2011
Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 – Read judgment
The Supreme Court has decided by a majority that a failure to review the detention of an immigration detainee, in accordance with immigration policy, meant that his detention was unlawful.
Immigration law always has the potential to be a political tinderbox, particularly in tough economic times when unemployment rates are high. Indeed, persistent governmental rhetoric about taking net migration “back to the levels of the 1990s” and “protecting the public” might seem to suggest that “tough on immigration” is the new “tough on crime”. The issues can be particularly acute in relation to foreign national prisoners (“FNPs”). This was demonstrated in 2006 when the Home Secretary Charles Clarke was urged to resign when it was discovered that about 1,000 FNPs had been released without being considered for deportation.
However, it is a basic principle of law in the United Kingdom that everyone is equal in its sight – even if they come from another country, and even if, having come from another country, they do very bad things. So, when dealing with the deprivation of someone’s liberty, the courts should be (and in this case have been) anxious to ensure that the law has been properly observed.
Sexual assault conviction
Shepherd Kambadzi came to the UK from Zimbabwe in 2002. His entry was lawful, but in 2005 he was convicted of assault and sexual assault, and sentenced to a year in prison. The Home Secretary decided that he should be deported following the completion of his sentence.
When a deportation order is about to be issued against someone, Schedule 3 of the Immigration Act 1971 provides that they can be detained pending that deportation. Once the order is made, they can then be detained pending their actual deportation. Therefore, although he had completed his custodial sentence for his crime, Mr. Kambadzi remained in prison. In total, he was in custody for an additional 27 months.
(Limited) power to detain
The power to detain under Schedule 3 of the Immigration Act 971 “pending deportation” is, on its face, unfettered. However, the courts have developed strong jurisprudence to limit the exercise of the power. In accordance with Article 5 of the European Convention of Human Rights (“EHCR”), the detention must not be “arbitrary”.
Such arbitrariness is usually avoided through compliance with what have become known as the “Hardial Singh” principles (taken from the judgment of Woolf J in R v Governor o Durham Prison, ex p Hardial Singh [1984] 1 WLR 704) – common law requirements that the detention must only be for the purpose of deportation, and that it must only be for a reasonable period in the circumstances.
But there are also other more specific legal requirements which might limit the power, in particular the requirements developed by the law of judicial review, such as the requirement not to take irrelevant considerations into account when making a decision, or to act in accordance with policy.
In this case, according to the Home Secretary’s own policy on detention of FNPs (contained in a document called Operation Enforcement Manual), MR. Kambadzi’s detention should have been regularly reviewed. It was not. The court noted that if the policy had been followed he would have had the benefit of 22 reviews – or 22 chances to be set free – but in fact his detention had only been reviewed ten times. The question for the court was whether this meant that his detention was unlawful. If it was, then no separate consideration needed to be given to Article 5 of the ECHR.
Lumba
A similar question had been addressed by the court in R (Lumba) v Secrteary of State for the Home Department [2011] UKSC 12 – another case involving the detention of a foreign national prisoner. In that case, the Claimant has been detained in accordance with an unpublished policy which set out different substantive requirements to those contained in the published policy. The court decided that this effectively meant there had been a breach of the substantial requirements of the published policy, and because that error “bore upon” the decision to detain him, it meant that his detention was unlawful.
This case was different because it involved the breach of a procedural requirement. Did this type of error give rise to a claim for false imprisonment? In the Court of Appeal, Laws LJ said no: breach of such a requirement would only make the detention unlawful if compliance was a condition of lawful detention. Neither interpretation of the Immigration Act 1971, nor of the requirements of the ECHR, elevated such procedural compliance into a condition of lawful detention.
The point was left open in Lumba, although it did foreshadow the decision in this case. In giving the leading judgement for the majority in Lumba, Lord Dyson made reference to basic principles of public law – in particular the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, which established that both an act outside of one’s powers, and an error made when acting within one’s powers – essentially any error – render an executive act unlawful and a nullity. On that view, the substantive/procedural distinction is not important.
And so the Supreme Court decided in Kambadzi: the failure to comply with the Home Secretary’s own policy was a public law error which rendered the ongoing detention unlawful – it did not matter that the breach of policy related to a procedural rather than a substantive requirement.
An extreme decision
At first sight, this is an extreme decision. If any breach of a policy, substantive or procedural, is enough to render detention unlawful, then a failure to e.g. present information on a prescribed form, or have a decision taken by the correct level of officer, could see the Home Secretary vulnerable to judicial review and claims in damages on grounds of unlawful detention.
However, the Supreme Court was sensitive to this issue.
In a sense, all public law errors are unlawful, and capable of being remedied, but the question for the court in any given case is whether or not the error impacts upon the act which is actually being challenged – in this case the act of detention. Lord Hope, giving the leading judgment for the majority, said that the key issue was whether or not the procedural requirement was sufficiently closely linked to the authority to detain. This was a further (and perhaps slightly stricter) articulation of the requirement set out in Lumba that the error must “bear upon” the executive act which is actually being challenged.
In this case, the procedural requirement to conduct reviews satisfied those tests, because they were required specifically so that it could be determined whether or not it was proper to continue to detain. As Baroness Hale said at paragraph 73:
It is not statute, but the common law, indeed the rule of law itself, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has a good reason to depart from it in the particular case at the particular time. Some parts of the policy in question are not directly concerned with the justification and procedure for the detention and have more to do with its quality or conditions. But the whole point of the regular reviews is to ensure that the detention is lawful.
To take an example of an error which would not have that effect, the majority postulated a situation where a review was conducted, but conducted by a person of the wrong level of seniority. Such a requirement is not concerned with the justification or propriety of detention, and so the error would not make the detention unlawful.
The Court also emphasized that where the error was sufficiently linked to the act of detention, that detention was unlawful even if it could be shown that the claimant would have been detained if the reviews had been conducted – that causation point had been decisively addressed in Lumba based on the nature of false imprisonment as a tort which is actionable without proof of damages. However, that issue would be relevant to an assessment of damages.
Where does that leave us?
In summary, the present state of the law relating to the detention of FNPs seems to be based on the following propositions:
- In accordance with basic public law principles, public law errors which taint administrative acts will render those executive acts unlawful.
- Where the administrative act being challenged is detention, it will be tainted if the error was closely linked to ensuring the propriety of detention
- Where detention is unlawful because of a public law error there will be an entitlement to damages for false imprisonment, even if the claimant could have been detained in the absence of the error. This is because of the nature of the tort as one which is actionable without proof of damage.
- However, in such cases, damages are likely to be nominal.
Yet despite the increasing solidification of the jurisprudence in this area, these cases leave open some interesting questions. The most interesting, I think, is the question of the effect of a failure to give proper reasons for a decision to detain, whether initially or on a continuing basis.
A requirement to give reasons for decisions to detain might be set out in a policy, or it might be imposed by the common law, taking into account the importance and consequences of such a decision. Is the giving of reasons for a decision to detain sufficiently closely related to the authority to detain that a failure would render detention unlawful, or would the only remedy for a failure to give reasons be a declaration and an order requiring such reasons to be provided?
Certainly, an argument could be made that, at least, the provision of reasons can “bear upon” the decision to detain. In R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, Lord Mustill said:
Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification; or both.
Or would the court simply take a strict approach when it comes to reasons? It is worth noting dicta in other cases which might be interpreted as suggesting that the court need not even consider whether there is a sufficiently close connection in relation to this particular type of error. In R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, Sedley LJ described the duty to give reasons as “an independent and enforceable legal obligation and hence a ground of nullity where it is violated”.
As ever, there are many points left to be resolved another day!
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