Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department

An executive detention policy must permit individual consideration, be applied consistently and disclose enough information for affected persons to make informed representations. A decision-maker must follow the published policy unless there is good reason to depart from it.

Detention authorised through a material public law error may constitute false imprisonment. It is no defence to liability that the person could and inevitably would have been detained lawfully. That inevitability may, however, reduce compensatory damages to a nominal award.

Detention pending deportation remains subject to the Hardial Singh principles. Its duration must be reasonable, deportation must remain realistically achievable within a reasonable time, and the Secretary of State must act with reasonable diligence. Legal challenges, risks of absconding or reoffending, and refusal of voluntary return require a fact-sensitive assessment.

Walumba Lumba v Secretary of State for the Home Department and the conjoined appeal of Kadian Mighty concerned foreign national prisoners detained under Immigration Act 1971 powers after completing their sentences. Between April 2006 and September 2008, officials applied an unpublished policy amounting substantially to a blanket practice of detention. The published policy instead presumed release and required consideration of alternatives.

Davis J declared the unpublished policy unlawful but dismissed the claims for damages: [2008] EWHC 3166 (Admin). The Court of Appeal allowed the Secretary of State's cross-appeal concerning a presumed policy of release, varied the other declaration and otherwise dismissed the appeals: [2010] EWCA Civ 111; [2010] 1 WLR 2168.

The Supreme Court considered whether the secret policies were unlawful; whether their application made the detention false imprisonment despite the inevitability of lawful detention; the appropriate damages; the Hardial Singh challenge to Mr Lumba's prolonged detention; and exemplary damages.

1. Appeals allowed by a majority of six to three. Lord Dyson gave the leading judgment on liability. Lord Hope, Lord Walker, Lady Hale, Lord Collins and Lord Kerr agreed that applying the unpublished policy made both detentions unlawful. The policy was substantially a blanket policy, conflicted with the published policy and had not been disclosed. A detention policy must provide genuine individual consideration. It must also disclose what an affected person needs to know to make informed and meaningful representations. Drafts, immaterial operational details and information which compelling interests such as national security require to remain confidential need not be published.

2. The Secretary of State could lawfully publish a normal practice under which foreign national prisoners would ordinarily be detained. Such a practice had to remain connected to the statutory purpose, comply with the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, and permit individual decisions. Paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971 confer a discretion; they do not themselves create a legal presumption of detention.

3. False imprisonment consists of imprisonment without lawful authority. Where a public authority is the detainer, the statutory power must be exercised lawfully. A public law error vitiates detention when it bears on the detention decision and is capable of affecting it. The Secretary of State could not defeat liability by proving that a lawful decision would inevitably have produced the same detention. That consideration concerned loss and damages, not whether the tort had occurred.

4. The operative award was nominal damages. Lord Dyson, Lord Collins and Lord Kerr held that the appellants had suffered no compensable loss because they inevitably would have remained detained under the lawful published policy. Lord Phillips, although dissenting on liability, agreed with that approach to damages. Lord Hope, Lord Walker and Lady Hale would instead have made modest conventional awards to recognise the breach. The court did not recognise a separate common-law head of vindicatory damages.

5. The four Hardial Singh principles, as restated in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, governed detention pending deportation. The assessment of a reasonable period is fact-sensitive. There is no rule excluding time spent pursuing legal proceedings. A hopeless challenge may receive minimal weight, while a potentially meritorious challenge receives greater weight. Risks of absconding and reoffending are important but not conclusive. Refusal of voluntary return is irrelevant while a non-abusive challenge is pending and otherwise has limited independent weight.

   The lower courts had misapplied those principles in Mr Lumba's case. His separate claim based on excessive detention was remitted to the High Court. Both claims for exemplary damages were rejected because the high threshold for oppressive, arbitrary or unconstitutional executive action warranting that remedy was not shown and because numerous potential claimants were not before the court.

6. Lord Phillips, Lord Brown and Lord Rodger dissented on liability. They would have held that the public law defects did not make these particular detentions false imprisonment because lawful detention under the published policy was inevitable.

1. United Kingdom Supreme Court: By [2011] UKSC 12, allowed both appeals, held the Secretary of State liable in false imprisonment, awarded nominal damages, rejected exemplary damages and remitted Mr Lumba's separate Hardial Singh claim to the High Court.
2. Court of Appeal: By [2010] EWCA Civ 111, reported at [2010] 1 WLR 2168, allowed the Secretary of State's cross-appeal and set aside the declaration that Schedule 3 prohibited a presumption of detention. It varied the declaration concerning the unpublished policy and otherwise dismissed the claimants' appeals.
3. High Court, Administrative Court: Davis J, in [2008] EWHC 3166 (Admin), declared that paragraph 2 of Schedule 3 to the Immigration Act 1971 prohibited the impugned presumed policy and that the unpublished policy was unlawful. He dismissed the damages claims.
4. High Court, Administrative Court: Collins J gave an interlocutory judgment in Mr Lumba's claim at [2008] EWHC 2090 (Admin). He reserved the historical detention and unpublished-policy issues for later determination.