Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC) v Secretary of State for the Home Department

An executive detention power must be exercised within its statutory limits and any published policy bearing directly on continued detention. Where regular reviews are a fundamental safeguard against arbitrary detention, an unexplained failure to conduct them makes continued detention unlawful and actionable as false imprisonment. It is no defence to liability that a lawful review would probably have authorised detention, although that counterfactual is relevant to damages and may justify only a nominal award.

Not every public law error invalidates detention. The breach must bear directly on the decision to detain; a defect concerning conditions or an immaterial departure, such as review by an official of the wrong grade alone, is insufficient. Anonymity in asylum proceedings must be justified individually and is not automatic.

The appellant was detained for 27 months under Schedule 3 to the Immigration Act 1971 while the Secretary of State pursued his deportation. The published Operations Enforcement Manual required frequent reviews of continued detention by officials of increasing seniority. By the first-instance hearing, only ten of the 22 required monthly reviews had occurred, and several were defective. It was nevertheless common ground that the substantive Hardial Singh limitations on detention had been satisfied throughout.

Munby J declared substantial periods of detention unlawful and directed an assessment of damages: [2008] EWHC 98 (Admin). The Court of Appeal allowed the Secretary of State's appeal and held that the detention remained lawful: [2008] EWCA Civ 1204, [2009] 1 WLR 1527. The central issue was whether breaches of the procedural review policy bore sufficiently directly on the authority to continue detention to constitute false imprisonment.

By a majority of three to two, the appeal was allowed. Lord Hope, Lady Hale and Lord Kerr held that the relevant periods of detention were unlawful. Lord Brown, with whom Lord Rodger agreed, dissented.

1. The statutory authority under Schedule 3 to the Immigration Act 1971 did not authorise indefinite detention merely because the initial decision was lawful. The implied limitations identified in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 required detention to remain directed towards deportation, reasonable in duration and pursued with reasonable diligence.

2. The Secretary of State was generally required to follow his published detention policy unless there was good reason to depart from it. The question was fact-sensitive: a breach rendered detention unlawful where the policy was sufficiently closely related to the authority to detain and the error bore directly on the decision to continue detention. The review provisions met that standard because they implemented the substantive limitations, guarded against arbitrariness and provided the means by which continuing authority was renewed.

3. The repeated failure to conduct reviews according to the required timetable therefore made detention during the relevant periods unlawful. It was no defence that the substantive grounds for detention continued to exist or that a properly conducted review would probably have reached the same result. Applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, the breach affected liability even though counterfactual causation remained relevant to damages.

4. Not every procedural or public law error has that effect. Errors concerning the conditions of otherwise lawful detention, ancillary rights or duties insufficiently connected with the decision to detain do not establish false imprisonment. The declaration was not restored for one month beginning on 6 December 2007, when the sole defect was that an official of the wrong grade conducted the review.

5. False imprisonment is actionable without proof of special damage. If the Secretary of State establishes that a proper review would have continued detention, only nominal damages may be recoverable. The evidence had not yet established that conclusion conclusively, so the assessment of damages was restored.

6. The alternative claim under article 5 of the European Convention on Human Rights added nothing once the common-law claim succeeded. The anonymity order was also set aside because asylum seekers have no automatic entitlement to anonymity and no individual justification had been shown.

Lord Brown and Lord Rodger would have dismissed the appeal. In their view, failure to perform a procedural review breached public law but did not invalidate detention while the statutory power and substantive grounds for detention remained satisfied.

1. United Kingdom Supreme Court: By a majority of three to two, allowed the appeal from [2008] EWCA Civ 1204 . Restored the High Court's declaration and damages directions, except for the one-month period beginning 6 December 2007 when the only defect was the reviewing official's grade. Set aside the anonymity order.
2. Court of Appeal: Allowed the Secretary of State's appeal, held that the detention had remained lawful and remitted a separately raised issue to the High Court: [2008] EWCA Civ 1204 , [2009] 1 WLR 1527 .
3. High Court, Administrative Court: Munby J declared specified periods of detention, amounting to about 19 months, unlawful and directed an assessment of damages, but refused an order for release: [2008] EWHC 98 (Admin) .