The Supreme Court yesterday handed down judgment in the case of Shepherd Masimba Kambadzi v SSHD [2011] UKSC 23, in the Court of Appeal known as SK (Zimbabwe) v SSHD [2008] EWCA Civ 1204. For reference, the original High Court judgment by Mr Justice Munby, as he then was, can be found here and the Supreme Court press release and summary can be found here.

The background to the case arose from the foreign national deportation scandal in 2006. Lord Hope quotes the prescient words of Chris Mullin, then a member of the Government:

“Illegal migrants and paedophiles, a toxic mix. The tabloids will go bananas.”

The tabloids did indeed go bananas, as might be expected. Unfortunately, so did the Government and the UK Border Agency, introducing a blanket policy to detain all foreign national prisoners, no matter what their circumstances and with no regard to the legality of their detention. The tabloids might be excused: it is in their dismal nature. Sadly, the same might also be said of politicians. It should not have been so for the institution of government, however. It has become clear in a number of reported cases that officials have an extraordinarily casual attitude to the liberty of immigrants.

Regarding the extent of the failings at the UK Border Agency in this particular case, see paragraph 26 of Lord Hope’s judgment:

“By the date of the hearing before Munby J the appellant had been entitled to 22 monthly reviews of the lawfulness of his detention in addition to the initial five reviews in the first month. In the event he had had only 10 reviews up to the date of the hearing. Of these, only six were conducted by officials of the required seniority. Of these, two were disavowed by the Secretary of State as flawed by material errors of fact. The details of the Secretary of State’s failure to carry out reviews at the required frequency and by the appropriate persons are set in the judgment of Munby J at paras 43 – 51 and 124 -127 and in paras 11 – 13 of the judgment of the Court of Appeal. The judge described the picture that emerged from his analysis of the Secretary of State’s file as deeply disturbing and profoundly shocking. The Secretary of State has acknowledged that reviews should have been carried out. He has not sought to justify or excuse in any way their absence in the appellant’s case. He also accepts that these failures cannot be extenuated by the appellant’s own bad character or his previous conduct.”

Two key questions are addressed in this judgment:

1. Is it lawful for the Secretary of State to detain a person in immigration detention but not to conduct proper reviews of that detention in line with the written detention policy?

2. If it is unlawful, what are the consequences? Must the person be released, even though his detention would be justified if the reviews had been carried out in accordance with the policy? Is the person entitled to a damages for any period of unlawful detention?

The majority of the Supremes (by a very close 3:2 split) answer the first question in the affirmative and restore the finding of Mr Justice Munby in the High Court that the detention was unlawful because it had not been properly authorised. The requirement to conduct reviews was a prerequisite to the continuing legality of the detention.

The second question is answered as it was in the recent case of Lumba: if detention could have been justified but was not then release is not appropriate and only nominal damages should be awarded. However, Lord Hope goes a little further and suggests that actions to establish the unlawfulness of detention might not always be a waste of time:

55. As for the question of damages, the decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award. The public law duty exists for the protection of everyone, from the most undeserving to the most vulnerable. The detention of children, those suffering from physical or mental illness and those who have been traumatised by torture are perhaps the most obvious examples. Paragraph 38.8 states that children are reviewed on a regular basis to ensure that the decision to detain is based on the current circumstances of the case and that detention remains appropriate. This sentence makes explicit in the case of children what must be taken to be the purpose of the reviews in all cases. The difference is that the system provides for more frequent reviews in the case of children. In any event, false imprisonment is a trespass against the person which is actionable without proof of special damage: Murray v Ministry of Defence [1988] 1 WLR 692, 701-702, per Lord Griffiths; Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 666- 669, per Lord Clarke.

56. There may well be issues as to quantum in cases of that kind. As Smith LJ said in Iqbal v Prison Officers Association [2009] EWCA Civ 1312, [2010] QB 732, para 83, an award of damages for false imprisonment is based on normal compensatory principles: see also Langley v Liverpool City Council[2005] EWCA Civ 1173, [2006] 1 WLR 375, para 70. It may be that the conclusion in this case will be that an award of nominal damages is all that is needed to recognise that the appellant’s fundamental rights have been breached. But that does not affect the issue of principle.

This arguably repairs some of the damage done by the earlier Lumba case, although neither Lady Hale nor Lord Kerr seemed remotely optimistic about the prospect of more than nominal damages being awarded in this case.

To translate this into real terms, as in the Lumba case, the UK Border Agency might be said to have gotten away with it. Detention was found to be unlawful, measures put in place to safeguard personal freedom were ignored and at times grossly violated and yet there is no real sanction against the Agency.

Trying to think ahead to the practical impact of these two related judgments from the Supreme Court, a claim for unlawful detention might be lodged and it might well be agreed by the Secretary of State that detention was unlawful in cases where the secret policy was applied and/or the necessary detention reviews were not properly carried out. The question will remain of whether detention would have be justified anyway on Hardial Singh principles, i.e. whether there was a real absconding risk, whether removal was imminent, whether the length of detention was reasonable in all the circumstances and so on. If it was not justified, this will result in a potentially substantial damages claim. A hearing might be necessary to determine this question, or the claimant might take the view that it is not worth pursuing. Damages will then need to be agreed or assessed. This might well be a County Court question rather than a High Court one if a hearing is necessary.