Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department

Facts

Foreign national prisoners were detained under immigration powers after serving their sentences, pending deportation. The published policy of the Home Office provided for a presumption in favour of release. From April 2006 to September 2008 the Secretary of State operated an unpublished policy under which release was considered only in exceptional circumstances. The claimants were detained during that period.

Issue

Whether the detention of the claimants under the unpublished policy was unlawful, whether any public law error would make detention unlawful in a claim for false imprisonment, and whether, given that the claimants might have been detained anyway under a lawful policy, they were entitled to more than nominal damages.

Held

The detention of the claimants during the period of the unpublished policy was unlawful. Because they would have been detained lawfully had the correct policy been applied, they were entitled to nominal damages only.

Ratio

• The Secretary of State must exercise a statutory power of detention in accordance with the principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, and must also act in accordance with her published policy; a secret policy that is inconsistent with the published policy is unlawful.
• A public authority is not entitled to operate an unpublished policy that differs from the published policy on which the individual would rely, because the rule of law requires that the individual know the criteria that will be applied to him.
• A public law error which bears directly on the decision to detain makes the detention unlawful and gives rise to the tort of false imprisonment, but if the detention would have been imposed in any event had the lawful approach been followed, the claimant is entitled only to nominal damages.

The judgments

Key reasoning

• The policy was a blanket approach that departed from the published presumption of release, and a public authority cannot depart from a published policy without announcing the change.
• Fairness and legal certainty require that the criteria used to determine detention be accessible, and the rule of law requires that the individual is able to make representations on the policy actually applied.
• The tort of false imprisonment is a strict one in which any unauthorised detention is unlawful, but damages depend on the loss, and a claimant who would have been lawfully detained suffers no compensable loss beyond the vindication of the right.

Where it fits in the module

In the debate on the rule of law and the role of the courts in checking the executive, the case shows how the principle in section 1 of the Constitutional Reform Act 2005 has practical effect. It illustrates the requirement of publicity and legal certainty in the exercise of executive discretion, and the courts using private law remedies to enforce public law standards.

Criticisms

• The distinction between the unlawfulness of the detention and the award of nominal damages means the individual wrongfully detained gets little, which weakens the deterrent effect of a ruling on the rule of law.
• The principle that any public law error bearing on the decision renders detention unlawful extends the tort of false imprisonment into territory that may more properly be dealt with by judicial review, with the risk of imposing liability for technical errors.
• Emphasising the duty to publish policy may be impractical for the executive in a fast moving area and can lead the government to avoid formal policies, replacing them with informal practice which is harder to review.