New Judgment: WL (Congo) 1 & 2 v SSHD; KM (Jamaica) v SSHD  UKSC 12
23 Wednesday Mar 2011
On appeal from: 2010 EWCA Civ 111
The main issue in this appeal was whether breaches of public law were capable of rendering unlawful the detention of foreign national prisoners pending their deportation under the Immigration Act 1971.
The Court held unanimously that it was lawful for the Secretary of State to operate a policy that set out the practice that she would normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law and ECHR, art 5(1)(f) were respected. However, as regards the application of the statutory power to detain, it was unlawful for the Secretary of State to maintain an unpublished policy that was inconsistent with her published policy, and which applied a near blanket ban on the release of FNPs. Breach of a public law duty on the part of the person authorising detention was capable of rendering that detention unlawful and did render it unlawful in this case. By a majority (Lords Phillips, Brown and Rodger dissenting), the court held that the fact that the appellants would have lawfully been detained in any event did not affect the Secretary of State’s liability in false imprisonment. By a majority (Lords Hope, Walker and Lady Hale dissenting), the court held that the fact that the appellants would have been lawfully detained was relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of £1. They were not entitled to exemplary damages. The court remitted to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the Hardial Singh principles.