Judgment handed down on unlawful detention of foreign national ex-offender after the Home Office failed to carry out regular detention reviews as required - SK (Zimbabwe) v SSHD
BID acted as an intervener in the case of Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC) v Secretary of State for the Home Department (0094214-0000001)
Supreme Court judgment available here and Supreme Court press summary available here
Background
The Supreme Court has declared that the immigration detention of a foreign national ex-offender from Zimbabwe, Shepherd Kambadzi, was unlawful. Kambadzi came to the UK on a visitor’s visa in 2002 on a visitor's visa. In 2005 he was convicted of assault and sexual assault and sentenced to 12 months in prison. Shortly before his release he was detained under Immigration Act powers, and held for over two years.
It is Home Office policy to carry out a monthly review of the need for ongoing immigration detention. Indeed, the statutory authority to detain requires renewal. However, in Kambadzi’s case there were no monthly reviews for the first ten months of his detention. He was released from detention in June 2008 after high court action, but has not yet been removed to Zimbabwe because conditions there do not allow for removals at the current time.
BID intervened in the case to emphasise that detention reviews provide an essential safeguard against arbitrary detention. For vulnerable detainees they also secure vital protection against harm to physical and mental health and well-being. The conduct of proper detention reviews, in the context of open-ended and potentially lengthy deprivation of liberty, is an essential feature of a fair system of administrative detention. The monthly detention review and consequent reasons given to detainees for their ongoing detention ensure transparency of decision-making and accountability for process errors in the context of loss of liberty.
R (Walumba Lumba and Kadian Mighty) v SSHD [2011] UKSC 12 (‘Lumba’), where BID also intervened, establishes that a breach of a public law duty on the part of the person authorising immigration detention is capable of rendering that detention unlawful; and did so in that case where the public law breach involved non-adherence to a published policy identifying substantive detention criteria. A key question that remained in SK was the effect of those principles where the breach of public law duty involves non-adherence to a published policy (and delegated legislation) requiring periodic detention reviews.
Lord Hope at paragraph 54 of the judgment notes that:
"It is true that the reviews were not required by the statute. But there was a public law duty to give effect to the provisions about reviews in the manual. If the reviews were not carried out – unless for good reason, which is not suggested in this case – continued detention was not authorised by the initial decision to detain. It is no defence for the Secretary of State to say that there were good grounds for detaining the appellant anyway. Unless the authority to detain was renewed under the powers conferred by the statute he was entitled to his liberty. The decision in Lumba leads inevitably to this conclusion."
Statement from BID
This judgment sends a very powerful message that procedural safeguards around immigration detention must be stringently observed, even or especially for the least popular people in society such as foreign nationals convicted of a violent offence and who have no right to remain in the UK. The practical picture against which detention reviews have such importance one of an acute shortage of legal advice and representation for those held in immigration removal centres, and more so for those held in prisons under immigration act powers. Furthermore, the judgment reinforces the importance of detention reviews as a means by which the authority of the Secretary of State to detain is renewed.
