Immigration detainees win £1 damages

Walumba Lumba and Kadian Mighty, from Congo and Jamaica, were unlawfully imprisoned for two years, supreme court rules.

Two immigration detainees have been awarded nominal damages of £1 each for being illegally imprisoned for two years under a secret policy operated by the Home Office.

The majority judgment by the supreme court criticised the previous government's reliance between 2006 and 2008 on unpublished regulations governing the detention of foreign national prisoners pending deportation.

The token compensation reflects the court's belief that the men, one Congolese and one Jamaican, would have been held in prison anyway under other laws.

Walumba Lumba entered the UK illegally in 1994, the court said. He was later convicted of wounding with intent and sentenced to four years in jail. He had been due for release in 2006 but was held in prison under the Home Office's secret rules. He left the country "voluntarily" last month.

Kadian Mighty, a Jamaican citizen, was originally granted leave to remain in the UK in 2003, but that permission was revoked after he was convicted of drug dealing and jailed. He was also detained after the end of his sentence, pending removal from Britain, but released in July 2008.

"Following adverse publicity in April 2006, the [home] secretary adopted a new policy which was not published," the supreme court said in a summary of the decision. "Between April 2006 and September 2008, the secretary of state applied this unpublished policy, which imposed a near blanket ban on release of foreign national prisoners.

"... The secretary of state is liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties. The appellants are, however, only entitled to nominal damages assessed at £1. They are not entitled to exemplary damages."

The supreme court found it was illegal to operate a clandestine policy which is "inconsistent with her published policy and which applies a near blanket ban on the release of foreign national prisoners". Jacqui Smith was Labour's home secretary between June 2007 and June 2009.

Three of the nine judges, Lords Phillips, Brown and Rodger, dissented from the judicial majority on the question of whether the treatment of the men amounted to false imprisonment.

Lumba's case had been backed by the Public Law Project, a legal charity that aims to improve access to justice. It said: "The secret policy required detainees to be held indefinitely and regardless of whether they posed any risk to the public.

"Lord Dyson … held that there is 'clear evidence that [UK Border Agency] caseworkers were directed to conceal the true reason for detention during this period and, in a reference to the then home secretary, Jacqui Smith, that there was a "deliberate decision taken at the highest level to conceal the policy."

Responding to the judgment, Jo Hickman, Lumba's solicitor, said: "This decision is a vindication of the rule of law and of the fundamental principle that no one should be deprived of their liberty by the abuse of executive power.

"The supreme court has made clear that all detention decisions must be properly, openly and lawfully made, or the resultant detention will be unlawful. This is a principled judgment in the context of individual liberty, and will help guard against any further abuse of the Home Office's detention powers."

The Home Office has amended its published policy several times since then. In September 2008 it declared there should be a presumption that all foreign national prisoners would be detained – bringing it into line with its unpublished policy. In January 2009, however, as a result of this case, references to any presumption of detention were dropped.

(Published by The Guardian - March 23, 2011)