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On appeal from : [2008] EWCA Civ 1204

The issue in this appeal is whether a failure by the SSHD to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment. While in detention, the appellant raised a judicial review, seeking a declaration that he was unlawfully detained and damages. Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to be enable a court of nine Justices to consider the case of R (Lumba) v SSHD [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention. The Supreme Court, by a majority, allowed the appeal. The Secretary of State was under a public law duty to adhere to the terms of the policy relating to reviews unless there were good reasons not to. The majority of the Court held that the SSHD’s unlawful failure to review the appellant’s detention, as required by the policy, resulted in his detention being unlawful. The court rejected the argument that because the breach of public law related to a procedural requirement, it did not affect the legality of the detention.

For the Court’s press summary, please download: Press Summary
For judgment, please download: [2011] UKSC 23