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

A rebuttable policy presumption favouring detention pending deportation is lawful if it respects the statutory purpose, the limitations on detention and individual circumstances. A blanket policy excluding individual exceptions unlawfully fetters discretion.

There is no general requirement to publish administrative detention policies. However, operating an unpublished policy which conflicts with, and is less favourable than, the published policy is unlawful. For detention requiring an executive decision, that unlawfulness invalidates detention only where the unpublished policy was applied and materially affected the decision. Where detention was inevitable under the published policy, the unlawful policy is immaterial.

The reasonableness of continued detention depends on the individual circumstances. Risks of absconding and reoffending, refusal of voluntary return and delay attributable to the detainee are relevant considerations.

WL, a Congolese national, and KM, a Jamaican national, were detained by the Secretary of State pending deportation following serious criminal convictions. They challenged an unpublished detention policy operated from April 2006 which conflicted with the published presumption favouring release. Their claims included damages for false imprisonment and exemplary damages.

In lead judicial review proceedings, Davis J, [2008] EWHC 3166 (Admin), declared that paragraph 2 of Schedule 3 to the Immigration Act 1971 prohibited a presumption favouring detention. He also declared the unpublished policy unlawful because it was insufficiently published or accessible. He nevertheless dismissed the individual claims before the Court of Appeal because detention would have occurred under the published policy. WL also appealed against Collins J’s refusal to order his release. KM had subsequently been released on bail.

The appellants challenged the dismissal of their claims. The Secretary of State cross-appealed against the declaration prohibiting a detention presumption. The principal questions concerned the policy’s character and legality, its material effect on each detention, and the reasonableness of continued detention.

1. The appellants’ appeals were dismissed and the Secretary of State’s cross-appeal was allowed. The declaration prohibiting a presumption favouring detention under paragraph 2 of Schedule 3 to the Immigration Act 1971 was set aside. The court delivered a joint judgment.

2. A rebuttable detention presumption was permissible. Paragraph 2(1) itself required detention unless release was directed, and policies implementing paragraphs 2(2) and 2(3) could contain presumptions consistent with the statutory power. Article 5(1)(f) did not require detention to be necessary to prevent absconding or offending. The contrary declaration in R (Sedrati) v Home Secretary was disapproved. Every policy remained subject to the Hardial Singh limitations and had to permit individual exceptions.

3. The additional evidence established that the Cullen criteria effectively imposed a blanket policy on prisoners convicted of specified serious offences from November 2007 until September 2008. That policy unlawfully fettered discretion. Throughout the relevant period, the secret policy or practice was also unlawful because it conflicted with, and was less favourable than, the published policy.

4. Administrative policy was distinct from law, and there was no general legal duty to publish it. The accessibility requirements governing law were satisfied by the statutory provision and the Hardial Singh principles. The court endorsed R (Nadarajah) v Home Secretary insofar as its decision depended on inconsistency between published and unpublished policies, while declining to accept its apparent equation of policy with law.

5. Under paragraphs 2(2) and 2(3), detention required a lawful executive decision. The existence of an unlawful policy alone was insufficient: its application had to materially affect that decision. If detention was inevitable, the policy was immaterial. The court added, obiter, that under paragraph 2(1) an unlawful refusal to direct release did not remove the legislative authority for detention. An unlawful detention review did not necessarily invalidate otherwise lawful continued detention.

6. The secret practice did not materially affect either appellant’s detention. Individual assessments and the serious risks of absconding and reoffending justified detention under the published policy. Refusal of voluntary return, non-cooperation and delay caused by challenges to deportation were relevant to reasonable duration. An asylum claim did not prevent a duration challenge where inability to remove arose independently of that claim. No material error in Collins J’s assessment was established.

7. WL could not rely on Directive 2008/115/EC because the United Kingdom had opted out. The court declined to determine new psychiatric issues at first instance while specialist tribunal proceedings were pending, leaving the precise extent of its appellate jurisdiction open.

8. The damages claims consequently failed. Observations on nominal damages and the effect of hypothetical lawful detention were obiter. Exemplary damages would also have been inappropriate: they would create an unwarranted windfall, drain public resources and present allocation difficulties across numerous related claims.

• Court of Appeal (Civil Division), [2010] EWCA Civ 111 : dismissed WL’s and KM’s appeals and allowed the Secretary of State’s cross-appeal. Set aside Davis J’s declaration that paragraph 2 of Schedule 3 prohibited a presumption favouring detention.
• High Court, Queen’s Bench Division (Administrative Court), Davis J, [2008] EWHC 3166 (Admin) , 19 December 2008: granted declarations concerning detention presumptions and the unpublished policy, but dismissed the individual judicial review and damages claims relevant to these appeals.
• High Court, Queen’s Bench Division (Administrative Court), Collins J: gave judgment on 4 July 2008 finding WL’s continued detention lawful. By order dated 17 July 2008, refused a mandatory order directing his release. WL’s appeal against that order was dismissed.