WL (Congo) & Anor, R (on the application of) v Secretary of State for the Home Department

A policy governing immigration detention may lawfully create a rebuttable presumption in favour of detention, including where serious offending supports it, provided that it remains consistent with the statutory purpose, the Hardial Singh limits and individual consideration. A blanket policy excluding individual exceptions is unlawful. There is no general rule requiring publication of every internal policy. However, a secret practice departing from a published policy may be unlawful because public authorities must ordinarily follow published policy unless there is good reason not to do so. In a false-imprisonment claim, the claimant must show that the unlawful practice materially caused the detention. Where detention would have occurred under the lawful policy or statutory authority, the claim fails.

The appeals arose from judicial review claims by foreign national prisoners detained after completing custodial sentences pending deportation. Davis J held that the Home Secretary had operated an unlawful unpublished policy, granted declarations, but dismissed the individual claims for damages. The decision is reported at [2008] EWHC 3166 (Admin).

WL appealed against the dismissal of his claim and separately challenged Collins J’s refusal to order his discharge. KM appealed against the dismissal of his claim. The Home Secretary cross-appealed against the declaration that paragraph 2 of Schedule 3 to the Immigration Act 1971 prohibited a presumption in favour of detention. The central issues concerned the lawfulness of presumptive or blanket detention policies, publication, causation and damages.

1. Disposition. The Court allowed the Secretary of State’s cross-appeal and set aside the first declaration. The appellants’ appeals were dismissed.
2. A policy involving a presumption in favour of detention is not unlawful merely because it is expressed in presumptive terms. Detention pending deportation may comply with Article 5(1)(f) even without a risk of absconding or reoffending. The relevant statutory power and the Hardial Singh limitations remained controlling. The declaration in R (Sedrati) v Home Secretary was wrong in law.
3. The critical limitation was that a presumption must not operate as a blanket policy excluding individual consideration. Even serious offending must leave room for individual exceptions. The evidence showed that, at least from the Cullen criteria, the practice operated on a blanket basis for prisoners convicted of specified serious offences.
4. There was no general rule that an internal policy was unlawful merely because it was unpublished. Policy was not equivalent to law for Article 5 purposes; the statutory provisions and the Hardial Singh principles supplied the necessary legal framework. However, the secret practice was unlawful because it conflicted with the more favourable published policy. The vice was inconsistency, not non-publication alone. This was properly analysed through public-law principles including legitimate expectation.
5. For detention under paragraph 2(1) of Schedule 3, the legislation itself supplied authority for detention, although an unlawful refusal to release could be quashed. For detention under paragraphs 2(2) and (3), the claimant had to show that the secret practice was applied and was material to the decision. If detention would inevitably have followed under the lawful policy, the unlawful practice was not an effective cause of detention.
6. The individual claims failed. WL’s detention had been individually reviewed and remained lawful under the Hardial Singh principles. His refusal to return or cooperate, and the delay caused by his own unsuccessful proceedings, were relevant. KM’s serious criminal record, escape attempt and risk of reoffending or absconding meant that the secret practice made no difference to his detention. The Court declined to determine as a first-instance tribunal whether WL’s current mental condition required release while specialist proceedings were pending.
7. The Court’s observations on damages were obiter. It questioned whether Roberts v Cheshire Chief Constable logically supported more than nominal damages where a lawful decision would have produced the same detention. Exemplary damages would in any event have been inappropriate and ill-suited to lead judicial-review claims.

1. Court of Appeal (Civil Division): The Secretary of State’s cross-appeal was allowed and the first declaration was set aside. WL’s and KM’s appeals were dismissed, including WL’s appeal concerning Collins J’s refusal to order discharge.
2. Queen’s Bench Division (Administrative Court), Davis J: In [2008] EWHC 3166 (Admin), declarations were granted that the detention policy was unlawful because it imposed a presumption in favour of detention and was insufficiently published. The individual claims and claims for damages were dismissed.
3. Queen’s Bench Division (Administrative Court), Collins J: Collins J refused WL’s application for an order directing discharge and held that his continued detention remained lawful under the Hardial Singh principles.