“Secret” detention of foreigners by Home Office was unlawful
A Home Office “secret policy” of detaining foreign nationals on their release from prison was unlawful, the Supreme Court has held.
Nine justices ruled by a 6-3 majority that the policy was unlawful because the government had deliberately concealed its existence, in R (Lumba) (WL) (Congo) v Secretary of State for the Home Department [2011] UKSC 12, [2011] All ER (D) 262 (Mar).
The foreign nationals were detained by the UK Borders Agency (UKBA) between April 2006 and September 2008, indefinitely and regardless of whether they posed a risk to the public.
The policy was put in place by the then Home Secretary John Reid, after press revelations that more than 1,000 foreign nationals were released without being considered for deportation led to the resignation of Charles Clarke.
Lord Dyson, giving the lead judgment, said there was “clear evidence that [UKBA] caseworkers were directed to conceal the true reason for detention” and that there was a “deliberate decision taken at the highest level to conceal the policy that was being applied and to apply a policy which, to put it at its lowest, the secretary of state and her senior officials knew was vulnerable to legal challenge.
“For political reasons, it was convenient to take a risk as to the lawfulness of the policy that was being applied and blame the courts if the policy was declared to be unlawful.”
Jo Hickman, of the Public Law Project, who acted for the lead claimant, Mr Lumba, says: “This decision is a vindication of the rule of law and of the fundamental principle that no-one should be deprived of their liberty by the abuse of executive power.”
Eric Metcalfe, human rights policy director at JUSTICE, which intervened in the case, says the ruling “sends a message that the Home Office is not above the law, and cannot hope to evade it by operating a secret policy of detention”.
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