High Court declares Home Office detention policy to be unlawful

On 19 December 2008 Mr. Justice Davis handed down judgment in R (Ashori) and Others v SSHD [2008] EWHC 3166 (Admin) declaring that a policy operated by the Secretary of State for the Home Department by which there would be a presumption in favour of detention for all foreign national prisoners at the expiry of their sentence was unlawful.

Davis J. said that the unpublished policy which had been communicated orally to staff in the Home Office from April 2006 was unlawful because it had not been made public or sufficiently accessible until it was published on 09 September 2008. He also held that paragraph 2 of Schedule 3 to the Immigration Act 1971 created no presumption in favour of detention and that the Executive could not create a presumption where Parliament had not done so.

However, he held that none of the five Claimants would be entitled to damages, because the Secretary of State would have been entitled to detain them under the published policy in any event.

Alex Goodman acted for the Claimant Lumba
Charles Bourne acted for the Defendant