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Supreme Court deportation ruling is 'unjustified restriction', Lord Phillips says

28 March 2011

Lord Phillips, president of the Supreme Court, has warned in a dissenting judgment that a majority ruling on deportation amounts to an “unjustified restriction” on the home secretary’s powers.

Six of the nine presiding justices ruled that the detention of two foreign national criminals pending their deportation under an “unpublished policy” amounted to false imprisonment, with Lord Dyson giving the leading judgment. The two men were each awarded damages of only £1.

“I believe that the interpretation given by Lord Dyson places an unjustified restriction on the secretary of state’s power of detention,” Lord Phillips said.

“It is obvious that detention will almost always make the practical task of deporting the detainee easier to arrange.

“Most deportees will be in this country through choice and cannot reasonably be expected to do anything to facilitate their deportation even if they do not try actively to prevent this.”

The court heard that the Home Office’s published policy between April 2006 and September 2008 suggested a presumption in favour of release, while in fact a quite different unpublished policy was operating, described as a “blanket ban” on release.

The two men involved were Walumba Lumba, a Congolese citizen convicted of wounding with intent, and Kadian Mighty, a Jamaican citizen convicted of a number of offences, including possession of a Class A drug with intent to supply.

Following his release from prison, Lumba was detained pending deportation. He left the UK voluntarily last month. Mighty was released on bail in 2008.

Giving judgment in R (on the applications of Lumba and Mighty) v Home Secretary [2011] UKSC 12, Lord Dyson said the former home secretary adopted the unpublished policy in 2006 after it emerged that over 1,000 foreign national prisoners had been released from prison before the question of their deportation was considered.

“What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision maker before a decision is made,” Lord Dyson said.

He said that “at first sight it might seem counter-intuitive” to hold that false imprisonment was committed by the unlawful exercise of a power to detain where it was “certain” that the claimant would have been detained if the power had been exercised lawfully.

“But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised.

Lord Dyson went on: “If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.”

Lord Dyson referred back to the High Court the separate question of whether Lumba’s detention was unlawful in any event under the Hardial Singh principles.

Lords Hope, Walker, Collins and Kerr agreed with Lord Dyson, for their own reasons, as did Lady Hale. Lords Brown and Rodger joined Lord Phillips in dissenting.

Eric Metcalfe, director of human rights policy at JUSTICE, said the ruling “sends a message that the Home Office is not above the law, and cannot hope to evade it by operating a secret policy of detention”.

He went on: “This judgment shows how seriously our courts take the right to liberty, that even a foreign prisoner may be entitled to damages when they are unlawfully detained.”

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