While the earlier judgment of SK (Zimbabwe)(UKSC 2009/0022) is still pending, the UKSC will yet again review the lawfulness of the SSHD’s detention powers. In the new matter which lies before the Supreme Court, fundamental principles of constitutional importance are raised which are connected to the SSHD’s ability to deprive a person of their liberty contrary to Article 5 of the Convention.
In its earlier judgment - in WL (Congo) and KM (Jamaica) [2010] EWCA Civ 111 – the Court of Appeal took the view that if a person’s detention was potentially lawfully authorised, then in that event their “detention was not unlawful by reason of the adoption and application of [a] hidden unlawful policy.” The UKSC will be particularly interested in the approach taken by the Court of Appeal in relation to the legality of the detention of individuals which is grounded in unpublished state policies.
The SSHD was, between April 2006 and 9 September 2008, bound by a published policy under which immigration detention pending deportation warranted a presumption which favoured the release of foreign national prisoners (FNP) prior to removal. Controversially, in monumental dereliction of her duties the SSHD failed to act in accordance of her published policy and she reversed the presumption favouring the release of FNPs by using what she has described as her “unpublished policy”.
Both WL and KM are black men and have quite adverse criminal antecedents. Both appellants argue their cases on well established constitutional principles. Firstly, it is argued by them that there is no precedent which justifies their detention. This, of course, repudiates the English system of common law under which unlawful detention without precedent or regulatory policy is forbidden. Moreover, they also argue that the SSHD’s “unpublished” policy is incompatible with Article 5 of the Convention.
Palpably the SSHD does not share this view and considers the appellants’ detention to be justified as WL and KM were convicted criminals.
The UKSC’s awaited decision will have much wider public law implications than the immigration context in which it is set. The appellants will be making claims for exemplary damages because KM was in detention for a year-and-a-half (he had a Class A drug conviction and was convicted of 14 robberies) and WL was in detention for four-and-half years (he had convictions for actual and grievous bodily harm). The appeal will allow the apex court to issue clear guidelines about the “unpublished” detention policies used by the SSHD.
Immigration officers acting under the Immigration Act 1971 enjoy much wider powers of arrest and detention than those accorded to the police under the Police and Criminal Evidence Act 1984.
