News just in: the Home Office’s secret policy of a presumption of detention in almost all deportation cases was this afternoon declared unlawful [judgment now available]. The current version of the Enforcement Instructions and Guidance, which incorporates the policy, was also declared unlawful.
Mr Justice Davis holds that the policy was not quite a blanket policy to detain all those facing deportation, but goes on to find that it was not lawful anyway. Firstly, it offends against the principles surrounding the power to detain. The statute that grants the Secretary of State the power to detain creates a presumption of liberty. Secondly, the policy was not sufficiently published or accessible. Indeed, it ran contrary to the policy that was published, at least until September 2008.
The applications for compensation for unlawful detention are then refused on the basis that even without the presumption in favour of detention these claimants would have been detained anyway: there was no causation and therefore no entitlement to damages. However, he does hold that, given the background to the cases, it is for the Secretary of State to show that detention was lawful, whereas normally it would be for the claimant to show that detention was unlawful; he shifts the burden of proof, basically.
Human rights don’t get a mention, interestingly.
The judge identifies some possible reasons to explain the failings at the Home Office: not wanting to be bearers of bad tidings to Ministers, an instinct for ducking apparently intractable problems or institutional inertia. He wisely refuses to take his pick, though. None of them exactly reflect well on the responsible civil servants or leadership at the Home Office.
Both sides wanted to appeal but permission was refused. Nevertheless, given the significance of the issues at stake it is likely to reach the Court of Appeal and quite possibly the Lords.