R (ABDI & OTHERS) v Secretary of State (2008) EWHC 3166 19th December 2008, Davies J

by Nabila Mallick 10/06/2009

Until April 2006 the published policy with regard to FNP's, as well as others, who it was proposed should be deported involved a rebuttable presumption in favour of release. After that date, this policy operated alongside an unpublished policy also operated, which created a presumption of detention in relation to FNP's. There was confusion within the Criminal Casework Team at the Home Office as to whether the policy was to operate in a blanket manner, permitting of no exception. However during the course of the policy remaining unpublished, 16 FNP's are said to have been released, none by reason of time that removal was to take place. After much internal Home Office debating, the policy was published in the revised Immigration Directorate’s instructions (Chapter 55) in September 2008.

At various stages prior to September 2008, five foreign national prisoners brought a Judicial Review challenge to the lawfulness of the SSHD’s policy on the detention of FNP's. These cases were linked together for the purposes of providing a lead case. During the four day hearing, the court considered a large number of authorities concerning unlawful detention, three cases in particular highlighted the difficulties in SSHD’s seeking to maintain the lawfulness of their unpublished policy, (which operated from April 2006 - September 2008).

In R (Sedrati) v Secretary of State for the Home Department [2001] EWHC Admin 418 Justice Moses declared that paragraph 2 of Schedule 3 to the Immigration 1971 Act did not create a presumption of detention. In R (Begbie) v Secretary of State for Education and Employment [2000] 1 WLR 1115 , LJ Sedley stated at paragraph 92,

"… there are today cogent objections to the operation of undisclosed policies affecting individuals' entitlements and expectations."

In R (Salih) v Secretary of State of the Home Department [2003] EWHC 2273 Admin Stanley Burnton J said at paragraph 52, in the context of "hard cases" support of unsuccessful asylum seekers but speaking generally,

"Leaving aside contexts such as national security, it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by Statute."

In deciding that the presumption in favour of liberty was inherent in the Common law and Article 5, Justice Davis referred to Lord Aitkin’s dissenting judgement in Liversidge v Anderson [ 1942] AC 206 approved of by the House of Lords in Reg v Inland Revenue Commissioners, exparte Rissimeter Ltd [1980] AC 952,1011,1025 and further extended, in Khawaja v SSHD [1984] 1 AC 74 at p110 to aliens as well as British Subjects and in the more recent House of Lords case of A and others (Belmarsh) [2004]UKHL 56 ,where Lord Bigham highlighted the difficulties in derogating from the right to liberty as enshrined by Article 5.

However the SSHD enjoyed some success relying on two recent decisions of D&K v Secretary of State for the Home Department [2006] EWHC Admin 980 and R(SK) v Secretary of State for the Home Department [2008] EWCA Civ.1204, which supported the SSHD’s argument on causation. That is, any claim for damages for unlawful detention had to fail as the Claimants had failed to show that they were detained by reason of any unlawfulness. The Claimants had argued that they were entitled to damages per se, by reason of their detention occurring during the operation of an unlawful detention policy.

Justice Davis made the following decision:

The presumption of detention policy introduced from April 2006 with regard to FNP's was unlawful as being contrary to law and the provisions of paragraph 2 of Schedule 3 to the 1971 Act (as interpreted by Sedrati).
Such policy was also unlawful as being insufficiently published or accessible prior to it's publication in the Enforcement Instructions and Guidance issued on 9th September 2008.
The policy as published on 9th September 2008 remained unlawful by reason of it creating a presumption of detention.
Any policy can not be a blanket policy providing for no exceptions, although the presumption of detention policy did not operate in this way.
The claim for damages failed as the SSHD had succeeded in showing that on a balance of probabilities the Claimants would have been detained in any event under the old published policy, which contained a rebuttable presumption of release.

The Claimants have obtained permission of the Court of Appeal to challenge the decision of Justice Davis. The Claimants argue that they are entitled to damages by reason of the operation of the 'unlawful detention policy' by the Home Office. R(SK) v Secretary of State for the Home Department [2008] EWCA Civ 1204 has a petition pending at the House of Lords.