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The Supreme Court will for the second time this year review the lawfulness of state action in the context of immigration detention in an appeal before a nine judge bench (Lords Phillips, Hope, Rodger, Walker, Baroness Hale, Lords Brown, Collins and Kerr, Sir John Dyson SCJ) beginning on Monday 15 November and listed for four days.  The appeal raises fundamental principles of constitutional significance concerning judicial scrutiny of executive deprivation of liberty and in particular the lawfulness of detaining individuals on the basis of unpublished state policies.The hearing follows closely on the heels of an earlier appeal – SK (Zimbabwe) (UKSC 2009/0022) – heard in February 2010 by a five court bench, which judgment is pending and seems likely be handed down at the same time as that in the present appeal.

The case refers to a period between April 2006 and 9 September 2008, during which the Secretary of State published, and purported to adhere to, a policy relating to immigration detention pending deportation that included a presumption favouring the release of foreign national prisoners prior to removal. However the Secretary of State admits that during this period the Home Office in fact applied an unpublished policy that effectively reversed the presumption stated in the published document.

The appellants in this case are foreign nationals both of whom were detained under powers in the Immigration Act 1971 pending deportation.  Their cases were selected before the Administrative Court as test cases to consider the legality of their immigration detention effected pursuant to an undisclosed executive detention policy.

WL is a citizen of the Democratic Republic of Congo who was convicted of a number of offences in the UK including assault occasioning actual bodily harm and inflicting grievous bodily harm.  He was due to be released from his criminal sentence in June 2006, but was not and has now been detained under immigration powers for almost 4 ½ years.  KM is a citizen of Jamaica who was convicted of 14 offences including robbery, possession of a class A drug with intent to supply and offences of attempting to escape from detention and occasioning actual bodily harm. He was detained under immigration powers for almost six months in 2006 and almost a year in 2007-8.

The Court of Appeal in WL (Congo) and KM (Jamaica) ([2010] EWCA Civ 111) held that if an individual’s detention could and would lawfully have been authorised in any event, detention was not unlawful by reason of the adoption and application of the hidden unlawful policy.

The appellant’s case on the key questions of constitutional principle is that:

•    This introduces a novel causation defence which is not supported by principle or precedent and which undermines the ancient protection afforded by the common law to the right not to be unlawfully detained.

•    The unpublished policy was unlawful for that reason alone at common law and contrary to Article 5 ECHR.

The Secretary of State contends that the focus on the non-publication of the policy is incorrect and the fact that it was unpublished was irrelevant in cases where individuals might have been detained in any event by reference to the published detention policy.  She contends therefore that the relevant question is the broader one, simply of whether the decisions to detain were unlawful.

Bail for Immigration Detainees (BID), an independent charity promoting access to justice for those in immigration detention has intervened before the Supreme Court (as it did in SK (Zimbabwe)) in support of the appellants.

The factual backdrop to this appeal is a large number of vulnerable individuals being held in detention often for lengthy periods of many months to a number of years.  As the facts in a number of the unlawful detention cases have revealed, there are significant failures in the frequency and substance of detention reviews (SK Zimbabwe), and difficulties in obtaining legal advice and representation (D v. Home Office (BID intervening) [2006] 1 WLR 1003.

The appeal represents an opportunity for the highest court to hand down clear guidance as to the effective protection of individual rights and to limit deviance from published policy in the area of detention. The outcome of the appeal is likely to be of wide significance in public law not simply in the application of immigration detention policy.