Douglas Ngumi v The Attorney General of The Bahamas and others (Bahamas)

Detention pending deportation must be authorised by statute and exercised within the limits imposed by the statutory scheme. A recommendation for deportation may trigger mandatory detention while the Minister decides whether to make a deportation order and the Governor-General decides whether to authorise continued detention, but those decisions must be made with due diligence and expedition. Absent special circumstances, they should ordinarily be made within one or two working days. If no deportation order is made, detention beyond that period is unlawful.

Damages for lengthy unlawful detention should be assessed in the round. A rigid daily rate should not ordinarily be multiplied by the period of detention. The assessment should reflect the length and conditions of detention, treatment suffered and aggravating features, with separate identifiable awards where practicable.

The appellant, a Kenyan national, was arrested in The Bahamas for overstaying and was convicted by the Magistrates’ Court. The court docket recorded that he was ordered deported. He remained in immigration detention for more than six years, during which he suffered assaults and degrading conditions. No deportation order was made and no steps were taken to deport him.

At first instance, Charles J held that the arrest was lawful, that some initial detention was unlawful, and that three months’ detention to arrange deportation was lawful. She awarded general damages of $641,000 and special damages of $950. The Court of Appeal increased the global award to $750,950 and ordered interest from the date of the writ, but otherwise upheld the decision. The central issues were whether detention pending deportation was lawful and whether the damages, interest and costs orders involved appealable error.

1. Detention and statutory construction. The appeal was allowed in relation to the finding that three months’ detention pending deportation was lawful. Section 40(1) of the Immigration Act 1967 gives the Minister, not the Magistrates’ Court or Governor-General, power to make a deportation order. Section 41(4) nevertheless gives the convicting court an implied power to recommend deportation in an appropriate case involving an immigration offence and no sentence of imprisonment.
2. The second limb of section 41(4) authorises mandatory detention after such a recommendation only while the Minister decides whether to make a deportation order and, if one is made, while the Governor-General decides whether to authorise continued detention pending removal. The statutory reference to the Governor-General making a deportation order was an obvious drafting error. Applying Inco Europe Ltd v First Choice Distribution (A Firm) [2000] UKHL 15, the provision was construed to give effect to the legislative scheme. Absent special circumstances, the necessary decisions should ordinarily be made within one or two working days.
3. The Magistrates’ Court’s recorded order was properly construed as a recommendation for deportation. Since no deportation order was ever made, the question whether three months was a reasonable period for arranging removal did not arise. Detention after the short statutory period was unlawful. The Board assessed damages for the additional period at $50,000, with interest at 6.25% from the date of the writ.
4. Damages. Compensatory damages for lengthy unlawful detention should ordinarily be assessed in the round, taking account of the length, conditions and treatment in detention, the misery and distress suffered, and aggravating features. A rigid daily rate should not ordinarily be applied by multiplication, although a notional initial or daily figure, if extrapolated, should ordinarily be tapered. First-instance judges should identify the relevant factors and, where practicable, make identifiable awards for assault and battery, false imprisonment, aggravated damages, and exemplary or constitutional damages.
5. The awards for constitutional or vindicatory damages, interest from the date of the writ, indemnity costs, and the Court of Appeal’s decision to make no order as to its costs involved no appealable error. The appeal on those grounds was dismissed. The Board advised that the appeal be allowed only on the lawfulness of the additional detention period and dismissed in all other respects.

• Privy Council: The appeal was allowed only in relation to the finding that approximately three months’ detention pending deportation was lawful. The Board assessed additional damages at $50,000 with interest from the date of the writ and dismissed all other grounds.
• Court of Appeal of the Commonwealth of The Bahamas: The judgment dated 18 August 2021, reported as SCCivApp No. 6 of 2021, increased the global award to $750,950 and ordered interest from the date of the writ, but otherwise upheld the first-instance decision.
• Supreme Court of The Bahamas: Charles J’s judgment dated 27 November 2020, reported as 2017/CLE/gen/01167, held that the arrest was lawful, that detention beyond the statutory period was generally unlawful, but that three months to arrange deportation was lawful. General damages were assessed at $641,000, with special damages of $950.