Kamoka & Ors v The Security Service And Others

For detention pending deportation to be lawful, the underlying decision to deport must itself be lawful. Convention safety issues, including the risk of treatment contrary to article 3, may therefore arise at the decision-to-deport stage. A public-law error concerning the exclusion of obviously material information can found a false-imprisonment claim where it bears on the decision to detain. However, summary judgment is inappropriate where the open evidence leaves a real prospect that further evidence may support the defendants’ case. The court must determine the application within the limits of the material properly available and should not draw adverse inferences where a different interpretation remains realistically possible.

The claimants, Libyan nationals subject to deportation decisions and detention pending deportation, brought claims including false imprisonment and trespass against the Security Service and other defendants. Earlier proceedings had been struck out and restored on appeal. The claimants applied under CPR Part 24 for summary judgment, relying principally on the defendants’ admission that information about the relationship between the United Kingdom and Libyan Security Services, including involvement in the rendition of Belhaj, had not been provided to the Secretary of State. The defendants contended that the information was irrelevant, that safety-on-return issues arose only at the later deportation-order stage, and that the open evidence could not establish liability summarily. The central issues were the statutory relationship between deportation and detention, the scope of the Lumba principle, the effect of Court of Appeal authority, and whether the available evidence justified summary judgment.

1. Statutory scheme. Under section 3(5)(a) and section 5(1) of the Immigration Act 1971, the making of a deportation decision and the subsequent making of a deportation order are distinct stages. Paragraph 2(2) of Schedule 3 permits detention pending the making of a deportation order. Nevertheless, the Home Secretary must address Convention issues at the first stage. If deportation would clearly breach article 3, the decision to deport could not lawfully be made and the consequential detention power could not lawfully be used.
2. Public-law error and detention. The reasoning in R (WL (Congo)) v Home Secretary ([2012] 1 AC 245) and R (SK (Zimbabwe)) v Home Secretary ([2011] 1 WLR 1299) applied by analogy to deportation decisions. Where detention is substantially consequent upon deportation, a public-law breach in making the deportation decision will ordinarily bear on and be relevant to the detention decision. This was subject to the distinction between different kinds of Wednesbury error.
3. Authority. The later Court of Appeal decision in D v Home Office ([2006] 1 WLR 1003) had declined to follow and had effectively overruled Ullah v Home Office ([1995] Imm AR 166). The court was therefore required to apply D. Draga v Home Secretary ([2012] EWCA Civ 842) involved an unsuccessful statutory appeal and did not preclude the present claims. SSHD v Gaviria-Manrique ([2016] EWCA Civ 159) was based on an analogous application of Draga and established no contrary principle.
4. Convention-right reasoning. The principle in R (Nasseri) v Home Secretary ([2010] 1 AC 1) that a Convention claim requires proof of an actual rights violation, rather than merely defective procedure, did not defeat the application. The present claims concerned deprivation of liberty and alleged that the Home Secretary had excluded information bearing on the integrity of the article 3 assessment.
5. Summary judgment. The admissible open evidence was limited. The defendants’ evidence raised a real prospect that further evidence could support their position, and the court could not safely infer irrationality from the incomplete evidential picture. The claimants’ CPR Part 24 application was dismissed. The court remained agnostic on causation and quantum, and directed that the closed application should proceed.

The judgment itself records earlier stages of the same litigation. The claims were struck out as an abuse of process by the High Court in [2016] EWHC 769 (QB) and restored on appeal in [2017] EWCA Civ 1665. A later case-management judgment was given in [2018] EWHC 517 (QB). The present court dismissed the claimants’ application for summary judgment.