05/11/2025
Written By: Jessica Jones
This case raised a number of issues relating to the detention pending deportation of foreign national prisoners (‘FNPs’). It has become known predominantly as the case that sets out and describes the public law requirement on the executive to publish relevant policies, and to follow a published policy unless there is a good reason not to do so. It is also important for establishing that a breach of public law renders a detention unlawful, even if the individual could and would have been detained by a lawful operation of the power. While such an individual is entitled to a finding that they have been unlawfully detained, the fact that, absent the public law error, they could and would have been detained lawfully, is reflected in the damages to which they are entitled (here, Mr Lumba was awarded nominal damages of £1).
Background
- The appellants were convicted of various criminal offences and, on completion of their prison sentences, were detained subject to immigration powers pending deportation to their country of origin. Section 3(5)(a) Immigration Act 1971 contains the relevant statutory power to detain.
- The Home Office had published a policy on the application of the detention power, which stated there was a presumption that FNPs would be released pending deportation. There was, however, an unpublished policy which was in fact followed between April 2006 and September 2008, and which contained a presumption in favour of detention. The appellants were detained under this unpublished policy.
- At first instance, Davis J held that it was unlawful for the Secretary of State to operate pursuant to an unpublished policy, but found against the appellants on the other issues they raised. The Court of Appeal allowed the Secretary of State’s appeal on the unpublished policy point, and dismissed the appellants’ appeal on the other points.
- The Supreme Court, sitting as a panel of 9 judges in this appeal, found for the appellants unanimously on the unlawfulness of operating an unpublished policy, and by a majority on all other issues. Lord Dyson gave the leading judgment.
Decision
- The Secretary of State accepted before the Supreme Court that three things were true for a policy to be lawful: “First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations” [20].
- Lord Dyson held that an unpublished policy is unlawful because, “The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised” [34]; and “The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by statute. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it” [35].
- For a policy to be lawful, “What must… be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made” [38]. Because the Secretary of State was in fact operating an unpublished policy, inconsistent with her published policy, the appellants’ detention was unlawful. This also meant that the appellants were entitled to have their claims for false imprisonment allowed, notwithstanding that they could and would have been detained by a lawful exercise of the detention power. As Lord Dyson observed, the Secretary of State’s submission to the contrary “entails the surprising proposition that the detention of a person pursuant to a decision which is vitiated by a public law error is nevertheless to be regarded as having been lawfully authorised because a decision to detain could have been made which was not so vitiated. In my view, the law of false imprisonment does not permit history to be rewritten in this way” [62]. Given that they inevitably would have been detained under the published policy, they were only awarded £1 in damages.
Comment
- Lumba has firmly entered the public law arsenal, grounding the requirement on public authorities to publish their policies so that affected individuals know the way in which their case will or should be treated. This provides an important protection for individuals, providing an obligation of transparency that is frequently invoked by claimants – Justis reports that Lumba has been cited in over 500 subsequent cases in England and Wales, Scotland, Ireland, the Caribbean, Singapore, Hong Kong, and Canada among other jurisdictions.
Matrix members
Raza Husain KC for the appellants
Former members Lord Justice Singh and Elizabeth Prochaska for the first intervener