Lumba v Secretary of State for the Home Department

The Supreme Court held that the Secretary of State’s application to the appellants of an unpublished detention policy (a "near blanket ban" on release of foreign national prisoners pending deportation) rendered their detention unlawful because it conflicted with the published policy and because the unpublished policy denied the scope for individualised consideration required by public law. The court reaffirmed that the Hardial Singh principles (detention must be for the purpose of deportation, detention only for a period reasonably necessary, cease once deportation cannot be effected within a reasonable time, and administration must proceed with reasonable diligence) remain applicable in assessing the lawfulness and duration of immigration detention under Schedule 3 to the Immigration Act 1971.

The court rejected a retrospective "causation" defence which would treat as lawful a detention actually authorised by an unlawful decision on the ground that the decision-maker could and would have reached the same outcome under the correct policy. Where an unlawful policy was applied and was material to the decision to detain, the detention is unlawful. Because, on the facts, the appellants would nevertheless have been detained under the published policy, damages are nominal. The court refused exemplary damages and remitted the discrete Hardial Singh damages claim of Mr Lumba for further consideration in the High Court.

Background and facts. Walumba Lumba (Congo) and Kadian Mighty (Jamaica) were foreign national prisoners detained after completion of their sentences under Schedule 3 to the Immigration Act 1971. After April 2006, the Secretary of State in practice operated an unpublished, restrictive policy (described internally as a "near blanket ban"), in contrast with the published policy which provided a presumption in favour of release or at least required individualised consideration. The appellants challenged the lawfulness of their detention, seeking declarations and damages, including exemplary damages.

Procedural posture. The cases originated in the Administrative Court ([2008] EWHC 3166 (Admin) and related hearings). Davis J granted declarations at first instance. The Secretary of State appealed to the Court of Appeal ([2010] 1 WLR 2168) which varied and set aside parts of the first-instance declarations. The appeals came to the Supreme Court.

Nature of the claim and relief sought. The claimants sought declarations that detention pursuant to the unpublished policy was unlawful, mandatory relief for release (or declarations of unlawful detention), compensatory and exemplary damages for false imprisonment and, in Mr Lumba’s case, damages for breaches of the Hardial Singh principles.

Issues framed.

• Whether the detention policies applied after April 2006 were unlawful because they were blanket, inconsistent with published policy, unpublished or contained a presumption in favour of detention.
• Whether application of any unlawful policies rendered the appellants’ detentions unlawful.
• Whether unlawful detention entitled the appellants to more than nominal damages, or to exemplary (or vindicatory) damages.
• Whether Mr Lumba’s detention independently breached Hardial Singh principles and, if so, remedies.

Court’s reasoning and conclusions. The court analysed in detail the published and unpublished policies and the Hardial Singh principles. It concluded that the unpublished policies were unlawful because they were applied as near blanket rules, were inconsistent with published policy and were not disclosed where disclosure was required to enable meaningful representations. The court held that where an unlawful policy was applied to a detainee and was material to the decision to detain, the detention was unlawful; it rejected a defence that retrospectively relied on how a lawful policy would have been applied (the "causation" defence). On damages the court held that in cases where it was inevitable that the detainee would have been detained under a lawful policy, the detainee suffers no compensable loss and is entitled only to nominal damages; exemplary damages were not warranted on the facts. The court remitted Mr Lumba’s discrete Hardial Singh damages claim to the High Court for fresh consideration in light of up-to-date evidence.

Appeal allowed. The Secretary of State was held liable in false imprisonment to both appellants because an unpublished detention policy inconsistent with the published policy was applied to them; that application rendered their detention unlawful. The court rejected the defendant’s "causation" defence (that the detentions would have been inevitable under a lawful policy). However, because the court was satisfied that, on the evidence, the appellants would have been detained even had the published policy been applied, damages were limited to nominal sums and exemplary damages were refused. Mr Lumba’s separate Hardial Singh damages claim was remitted to the High Court for further consideration.

First-instance Administrative Court proceedings and declaratory relief ([2008] EWHC 3166 (Admin) and [2008] EWHC 2090 (Admin)); hearing before Davis J ([2008] EWHC 3166 (Admin)); Court of Appeal decision [2010] 1 WLR 2168 (on appeal and cross-appeal); appeal to the Supreme Court ([2011] UKSC 12).