• In the case of R (WL (Congo)) v Hong Secretary [2011] UKSC 12; [2012] 1 AC 245, it was established that the rule of law needs policies to be transparent for those of the public. As such, where there is an unpublish policy which contravenes the published policy, it will be deemed legally invalid.

Facts of the Case

  • D, the Home Office, published a policy that concerned detaining foreign national prisons which stated, in cases of immigrants that are placed in detention and are awaiting deportation, that there was a presumption favouring their release.
  • D chose to follow an unpublished policy which was in complete contradiction to the above policy described. The policy involved a ban on the release of immigrants.
  • Cs, who were prisoners, applied for judicial review of the unpublished policy which sought to create a blanket ban on the release of the detainees.
  • Cs also sought to sue D under the tort of false imprisonment.

Issues

  • Was D’s policy legally invalid?

Held by the Supreme Court

  • The Supreme Court found the policy to be illegal and applied the tort of false imprisonment in the absence of proving damages, although Cs would be detained regardless of the power being lawfully used.

Lord Dyson

  • His Lordship emphasised the need for transparency by public officials when releasing policy.
  • “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 the 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.”
  • “The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.” [34]

Lord Phillips (dissenting)

  • “Most deportees will be in this country through choice and cannot reasonably be expected to do anything to facilitate their deportation even if they do not try actively to prevent this. It is open to the Secretary of State to detain a person in order to facilitate his deportation and this is often the, or one of the, reasons for doing so. But, as I shall explain, I do not consider that detention of a deportee will only be lawful if used for this purpose.”

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