The supreme court verdict on Wednesday is the end of a three-year legal battle for Shepherd Kambadzi, a failed asylum seeker from Zimbabwe who was detained while the Home Office tried to remove him from the UK.
Pierre Makhlouf, head of law at Bail for Immigration Detainees, which was involved in the case, said: “This is very good news for other cases we are fighting and will oblige the UK Border Agency to take the issue of deprivation of liberty more seriously.
“Detention is regularly for long periods of time and there is therefore a pressing need for full protective measures.”
Kambadzi arrived in the UK in 2002 on a visitor’s visa, which expired in 2004. In December 2005 he was convicted of assault and sexual assault and sentenced to 12 months in prison.
The day before he was due to be released, he was detained under Immigration Act powers.
Two years later, in April 2008, with Kambadzi still in detention, his lawyers took the case to the high court, arguing that his detention was unlawful because it was not reviewed on the required monthly basis. No review was carried out at all in the first 10 months of his detention.
He was released in June 2008 but has still not been removed to Zimbabwe because of conditions there.
At an earlier stage of the case at the high court, judge Justice Munby described as “casual mendacity” a Home Office practice in which the writing of monthly progress reports “seemed to have predated the actual decision”.
Giving the majority verdict on Wednesday, Lord Hope said the court rejected the Home Office argument that the failure to follow procedures did not make detention unlawful.
An order was made for compensation, although the amount will be minimal if the Home Office can argue it would have detained Kambadzi even if the reviews had taken place.
A Home Office spokesperson said: “We are disappointed by the court’s decision, but this will not affect our intention to deport this foreign national criminal.
“Our priority will always be to protect the public, and we will seek to remove any foreign national convicted of a serious crime.”
Foreign national prisoners became a pressing issue for the Home Office in 2006. The then home secretary Charles Clarke was forced to resign when it was discovered that about 1,000 foreign national prisoners had been released without being considered for removal.
Clarke’s successor, John Reid, introduced a tougher policy that all foreign nationals would be detained at the end of a criminal sentence.
Keith Vaz, Labour MP and head of the home affairs select committee, said: “Detaining people for long periods of time should not be an immigration solution. The current situation keeps those being held in limbo and is a waste of taxpayers’ money.”
Lawyers say the policy has led to hundreds of people being detained despite there being no way to remove them quickly from the UK.
Some countries, including Somalia, Iran and Algeria, refuse to co-operate with forced removals and it can take many months, or even years, to issue travel documents. The Home Office said detainees often refused to provide identification that would help speed up deportation.
Figures from September last year showed that 260 people had been held in immigration detention for more than a year. Most of those were former prisoners waiting to be removed.
Makhlouf said lawyers were dealing with more cases of long-term detention. “Increasingly we are getting more and more people who are being detained for three or four years,” he said. “I get the sense that the Home Office forgets people.”
Lawyer Stephanie Harrison, who specialises in unlawful detention cases, said: “There has been a move to detention which is increasingly unconnected to the limited powers that the Home Office has to detain pending examination or removal. There are significant numbers of people being detained where their cases can’t be progressed and in those situations the detention is unlawful.”
The Liberal Democrats promised before taking office to try to end indefinite detention.
But in a recent interview with the Guardian, Lib Dem deputy leader Simon Hughes said: “If people can’t be sent back, except in the most severe criminal circumstances, they should be released. But you would have difficulty in persuading the government of any colour that there should be a fixed point at which people should be released, irrespective of the severity of the offence.”
The Home Office also faces legal challenges from detainees who have lived legally in the UK and have children here. Many are fighting their deportation on the grounds that it would breach their right to a family life under article 8 of the European Human Rights Act.
Mohamoud Jama, 25, came to the UK from Somalia when he was 13. After being sentenced to 15 months in prison for assault in 2008, he was given a deportation order. Nearly two years later, he is still waiting to be removed.
Speaking from Harmondsworth detention centre, he told the Guardian: “I am living in a nightmare. I have no release date. You have just been locked up and [they] throw away the key.”
His friends and family in Bolton, where he grew up, have been campaigning for him to be released.
Childhood friend Ibrahim Ismail said: “It’s shocking, really shocking. Those months, those years he has been detained after his sentence finished, he’s never going to get those back.”
Jama’s supporters say he should be allowed to come back to Bolton and carry on with his life. Ismail said: “There is nothing for him in Somalia; all his family are here. It’s like taking a British person and dumping them in Somalia.”
But Jama said he would rather be deported than stay in detention any longer. “When I realised their intention is to keep me in prison I said, fair enough, deport me, I don’t want to spend my life in this situation.
“In June 2010, I signed the papers to go to anywhere they want to send me. But they have failed. They have no plan other than to keep me in detention. It’s a disaster, an absolute disaster.”