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

The court considered whether the Secretary of State’s failure to carry out detention reviews in accordance with a published policy (Operations Enforcement Manual, chapter 38, and the Detention Centre Rules 2001, Rule 9) rendered continued immigration detention unlawful and gave rise to an action for false imprisonment. The Hardial Singh principles (limits on detention pending removal or deportation) remain applicable and require that detention be for the purpose of removal, for a reasonable period and pursued with reasonable diligence.

The majority held that the published review regime was sufficiently closely linked to the statutory power to detain under Schedule 3, paragraphs 2(2) and 2(3) of the Immigration Act 1971 that unexplained and material departures from that regime could make continued detention unlawful. Where the Secretary of State breached that public law duty without good reason, tortious remedies including damages for false imprisonment are available; causation affects quantum. The appeal was allowed and the declaration and orders for assessment of damages were restored.

Background and parties: The appellant is a Zimbabwean national detained under the immigration powers after completing a prison sentence. He sought judicial review and damages for false imprisonment, arguing that the Secretary of State failed to carry out the regular detention reviews required by the published policy and Detention Centre Rules, and that this failure rendered his continued detention unlawful.

Procedural history: Munby J (EWHC 98 (Admin)) declared parts of the appellant’s detention unlawful and directed assessment of damages; the Secretary of State appealed and the Court of Appeal ([2008] EWCA Civ 1204) held that detention had been lawful throughout and allowed the Secretary of State’s appeal in part, remitting a limited issue. The appellant appealed to the Supreme Court. The court withheld judgment pending the multi-judge decision in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, then invited further submissions and decided this appeal.

Nature of the claim: The appellant sought a mandatory order for release (not pursued after bail), a declaration that parts of his detention were unlawful and damages for false imprisonment. An alternative claim under article 5(5) ECHR was also advanced.

Issues framed: (i) whether the Secretary of State’s published policy and the Detention Centre Rules had the effect of qualifying the statutory power to detain, (ii) whether failure to conduct the specified reviews rendered continued detention unlawful and actionable as false imprisonment, and (iii) the effect of Lumba and causation/quantum questions including whether nominal or compensatory damages were appropriate.

Court’s reasoning: The majority held that chapter 38 of the Operations Enforcement Manual and the review timetable were not merely administrative guidance but an integral procedure tied to the lawfulness of continued detention; the review decisions were the practical locus of the authority to continue detention. Where the Secretary of State departed from that published regime without good reason, the public law error bore on the detention decision and could render the detention unlawful. The court recognised that the Hardial Singh principles constrain detention in any event. The majority accepted that causation remains relevant to quantum: if a proper review would in substance have produced the same outcome, damages may be nominal only. The article 5 argument added nothing where the common law claim succeeds but would have been available as an alternative remedy.

Result: The Supreme Court allowed the appeal, restored Munby J’s declaration that the appellant’s detention was unlawful for specified periods, and ordered assessment of damages if not agreed. The court set aside the anonymity order and named the appellant.

Appeal allowed. The majority held that the Secretary of State’s published review regime in the Operations Enforcement Manual and the related administrative practice were sufficiently closely linked to the statutory power to detain under Schedule 3 of the Immigration Act 1971 that material, unexplained departures from that regime rendered continued detention unlawful. The court restored Munby J’s declaration that the appellant’s detention was unlawful for specified periods and remitted assessment of damages; causation is relevant to quantum and may limit recoverable damages to nominal amounts in some cases.

First-instance: Munby J granted a declaration that parts of the appellant's detention were unlawful and directed assessment of damages: [2008] EWHC 98 (Admin). Court of Appeal: allowed the Secretary of State's appeal and held detention lawful throughout, remitting limited points: [2008] EWCA Civ 1204, [2009] 1 WLR 1527. Supreme Court: allowed the appellant's appeal and restored the High Court declaration and orders: [2011] UKSC 23.