The Supreme Court held that DN, a recognised refugee, had been unlawfully detained for deportation. The detention depended on a decision to deport him for a conviction which a 2004 Order treated as a particularly serious crime, and that Order was ultra vires. He may pursue damages for false imprisonment, but the Court did not decide that claim, or whether res judicata or issue estoppel might defeat a similar claim in future.
Why DN was detained
DN was a recognised refugee. After a criminal conviction the Home Secretary sought to deport him on the basis that the offence was a particularly serious crime.
The Home Secretary detained DN under Schedule 3 to the Immigration Act 1971, initially pending the making of the deportation order and subsequently pending deportation.
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The decision relied on section 72 of the Nationality, Immigration and Asylum Act 2002 and an order made in 2004 which specified the offence. That order was subsequently held to exceed the statutory power. The question was what that defect meant for detention already carried out.
Draga and the courts below
DN sought judicial review to quash the deportation order, to have the 2004 Order declared ultra vires, and to recover damages for unlawful detention. In EN (Serbia) the Court of Appeal held on 26 June 2009 that the Order was ultra vires and unlawful. In March 2010 the Home Secretary stopped relying on article 33(2) and instead relied on changed circumstances in Rwanda under article 1(C)(5) of the Convention. The claim for past detention remained.
The claim was stayed for R (Draga) v Secretary of State for the Home Department. The Court of Appeal there held that a flaw in the decision to deport, or in the making of the order, did not make the detention unlawful. Sullivan LJ accepted that, at first impression, those unlawful decisions bore on the detention, because without them there could have been no decision to detain. He held, however, that the statutory scheme required a different answer: deportation has two stages, notice and then the order; the notice can be appealed on wide grounds, including that the decision is not in accordance with the law; and the order cannot be made until the appeal is finally determined. He thought it would frustrate that scheme if, once time for challenging the tribunal had expired, the Secretary of State could not treat its dismissal of the appeal as a lawful basis for the deportation order. Pill LJ agreed that detention following an apparently lawful Order, and a tribunal decision upholding deportation, was lawful.
Collins J dismissed DN’s claim by consent because the parties agreed that Draga bound him. The Court of Appeal held that it could not depart from Draga.
The detention fell with the deportation decision
Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agreed, applied R (Lumba) v Secretary of State for the Home Department. To prove false imprisonment, the claimant must show imprisonment; the Secretary of State must then show lawful justification. Lord Dyson had held that there is no difference between detention without a statutory power and detention under a statutory power exercised in breach of public law. The Secretary of State cannot justify detention by showing that a decision free from error could and would have been made. A public law error must bear on the detention, but that does not introduce a separate causation test.
Here the power used to decide upon and make the deportation order was invalid because it depended on the ultra vires 2004 Order. Detention was for the purpose of facilitating deportation. Lord Kerr regarded it as artificial and unwarranted to separate the two. The respondent’s argument that the statutory appeal broke the chain of causation, and made the detention independent of the deportation decision, was rejected. Notice of the decision, or the order itself, is a prerequisite of detention under paragraph 2(2) or 2(3). If the deportation decision is successfully challenged, the basis of the detention falls with it.
Lord Kerr agreed with Lord Carnwath that Lumba can be displaced by a specific rule of law, but that none applied. A right of appeal does not, without a specific statutory exclusion, remove the common law claim, and finality and certainty cannot extinguish a clear legal right. DN was detained for an intended, and then an actual, deportation order which proved unlawful. On the arguments before the Court, the unlawfulness of that detention was inescapable. Both judges held that Draga was wrongly decided. Lord Carnwath added that no court had ordered the detention, and that the Secretary of State could not rely on a “second actor” analysis: the same Secretary of State was responsible both for the unlawful Order and for the later detention based on it.
Lord Kerr also held that Ullah v Secretary of State for the Home Department was wrong in so far as it treated paragraph 2(2) as making detention lawful merely because notice of intention to deport had been given, regardless of whether the decision to deport had a legal basis. Notice, the order and the detention are steps in the same transaction. Absent a lawful basis for the deportation order, it is not possible to give legal life to the decision to detain.
What was not decided
Lord Carnwath agreed that the appeal should be allowed on the arguments presented, but suggested that res judicata or issue estoppel might answer a similar claim in future. His view, not argued by the parties, was that the tribunal’s 2007 decision and the High Court’s refusal of review had conclusively decided the lawfulness of the deportation decision at that time, and that DN could then have challenged the 2004 Order but did not. He did not think that decision could justify continued detention after EN (Serbia). Lord Kerr, for the majority, regarded that area as not free from controversy and declined to express even a tentative view. The agreed point was only that it would be unfair to introduce either doctrine against DN now, because the Secretary of State had not relied on it.
Verdict: The Supreme Court unanimously allowed DN’s appeal. His detention was unlawful and he could pursue damages for false imprisonment. The Court did not award or quantify damages.
Source: R (on the application of DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7
