Alison Pickup analyses the changing nature of detaining foreign prisoners
In WL (Congo); KM (Jamaica) v SSHD [2010] EWCA Civ 111, [2010] All ER (D) 221 (Feb) the appellants were foreign national prisoners (FNPs), detained beyond the end of their sentence pending their deportation from the UK under powers contained in Sch 3 of the Immigration Act 1971 (the 1971 Act).
It had emerged in the course of litigation that during a period from approximately April 2006, when the so-called “foreign national prisoners crisis” broke, until September 2008, officials in the Home Office’s Criminal Casework Directorate (CCD), which dealt with the detention and deportation of FNPs, had been operating a blanket policy of detaining all FNPs, despite the fact that their published policy stated that there was a presumption in favour of release in all cases. In September 2008, the published policy was amended so that it now contained a presumption in favour of detention of FNPs, which was then applied by CCD. This policy operated until January 2009, when, following the judgment of the Administrative Court, it was amended so that, on its face at
