Secretary of State for the Home Department v Draga

A final tribunal determination dismissing an appeal against a decision to make a deportation order provides a lawful basis for making that order and for associated detention. A later appellate decision showing that the original legal basis was erroneous does not reopen the final determination or retrospectively invalidate the detention. The affected person may instead seek revocation of the order.

Once the order’s foundation is shown to be unlawful, the Secretary of State must reconsider continued detention and revoke the order after a reasonable opportunity to assess a properly founded application. Continued reliance on the discredited basis, or on a device designed to preserve the order, is a material public law error rendering detention unlawful.

The Secretary of State appealed against a declaration that the respondent, a recognised Kosovan refugee, had been unlawfully detained during two periods pursuant to deportation proceedings. The deportation decision rested solely on a statutory order which was subsequently held ultra vires in another case. Before that ruling, the Asylum and Immigration Tribunal had finally dismissed the respondent’s appeal against deportation.

The High Court held in [2011] EWHC 1825 (Admin) that the invalid statutory order deprived the deportation decision and ensuing detention of a lawful foundation. The central issues were whether the final tribunal determination nevertheless authorised the order and detention, and when continued detention became unlawful after the statutory order’s invalidity became known.

1. Appeal allowed in part. Sullivan LJ, with whom Kitchin and Pill LJJ agreed, held that the respondent’s detention was lawful until the Secretary of State had had a reasonable opportunity to consider the properly founded request to revoke the deportation order. The detention was unlawful from 1 January to 30 September 2010.

2. The decision that deportation was conducive to the public good and the decision to make a deportation order had both rested solely on section 72(4) of the Nationality, Immigration and Asylum Act 2002 and the statutory order made under it. Those decisions therefore involved a public law error once that order was held ultra vires in EN (Serbia), [2009] EWCA Civ 630.

3. That error did not retrospectively invalidate the earlier detention. Parliament had established a comprehensive appeal scheme under sections 79, 82 and 84 of the 2002 Act. The tribunal’s final dismissal of the respondent’s appeal was determinative between the parties and entitled the Secretary of State to treat the deportation decision as lawful. It supplied lawful authority for detention under paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971. A later appellate ruling in separate proceedings could justify an application to revoke the order, but could not reopen the final tribunal decision or invalidate the order made in reliance upon it.

4. An appeal succeeding against a deportation decision does not necessarily make earlier detention unlawful. The relevant public law error must bear upon and be material to the decision to detain. The statutory finality of the specialist appeal process distinguished this case from a direct challenge to an independently unlawful detention decision.

5. After EN (Serbia), the Secretary of State was required to make a separate decision whether detention should continue. The tribunal later found that reliance on cessation of refugee status was a device for maintaining deportation after section 72(4) could no longer be relied upon. Dependence on that device was a material public law error. Pill LJ added that, once the original order was known or ought to have been known to rest on an ultra vires instrument, the Secretary of State had a duty to revoke it. A fresh deportation order on lawful grounds remained possible, but a hypothetical lawful decision could not justify the detention actually imposed.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 842, allowed the Secretary of State’s appeal in part. It limited the declaration of unlawful detention to the period from 1 January to 30 September 2010.
2. High Court, Queen’s Bench Division: In [2011] EWHC 1825 (Admin), granted a declaration that the respondent had been unlawfully detained between 2 August 2006 and 27 March 2007, and between 30 November 2007 and 30 September 2010.
3. First-tier Tribunal: On 8 September 2010, allowed the respondent’s appeal against refusal to revoke the deportation order. Permission to appeal was refused on 30 September 2010.
4. Court of Appeal: In [2008] EWCA Civ 319, refused an extension of time for appealing against the earlier immigration determination.
5. Asylum and Immigration Tribunal: Dismissed the deportation appeal in February 2007 and again on reconsideration in October 2007.