R (Lumba & Mighty) v Secretary of State for the Home Department

On 23 March 2011 the Supreme Court handed down judgment in R (Lumba & Mighty) v Secretary of State for the Home Department, in which it held that all foreign nationals released from prison and detained under immigration powers between April 2006 and September 2008 were falsely imprisoned under an undisclosed policy that contradicted the Government’s published policy but awarded only nominal damages for the tort.

The case is set to become a leading case on public law, false imprisonment and immigration detention law. 

A panel of nine Law Lords have decided (by majority on several issues) a number of important points of principle such as: (1) the Government must have in place and publish policies that guide the exercise of its executive detention powers; (2) it is however lawful for such a policy to set out situations in which a person will normally be detained provided the Government justifies the detention with reasons that are closely connected to the purpose of the detention power; (3) an action in false imprisonment is not limited to cases where the Government has acted without jurisdiction at all but can extend to cases where the decision is flawed on other public law grounds.; (4) if the Government demonstrates that a person would have been detained in any event, only nominal damages will be awarded (“vindicatory damages” were ruled out); (5) the Hardial Singh principles were affirmed; (6) in considering whether a person had been detained for an unreasonable length of time, risk of re-offending is relevant (7) by contrast time spent reasonably challenging deportation is not relevant; (8) non-cooperation with efforts to return is of limited relevance. 

In so holding, the Supreme Court overturned the Judgment of the Court of Appeal and the first instance Court.

Tom Hickman represented the First Claimant/Appellant, Mr Lumba; Michael Beloff QC represented the Defendant/Respondent; Michael Fordham QC represented the intervener, Bail for Immigration Detainees