R (WL (Congo) 1 and 2 and KM (Jamaica)) v SSHD

Court of Appeal rules on secret Home Office detention policy.

The Court of Appeal ruled that between April 2006 and November 2007 the Home Office had operated an unlawful secret practice inconsistent with published policy and further that from November 2007 to September 2008 it had unlawfully operated a blanket policy of detaining all foreign national prisoners at the expiry of their prison sentences. Damages were not awarded to the Appellants, but the decision opens up the possibility of damages claims for persons whose detention would not have inevitably resulted but for the unlawful policies.

The Court found, however, that the Home Office would be entitled to operate a policy which presumed in favour of detention. A further finding of potential legal significance at paragraph 58 was that “we may have arrived at the point where it is possible to extract from the cases a substantive legal rule that a public body must adhere to its published policy unless there is some good reason not to do so”.

Alex Goodman acted as junior counsel for the Appellant WL and Charles Bourne as junior counsel for the Respondent Secretary of State.