DN (Rwanda) v The Secretary of State for the Home Department

The Court of Appeal cannot reopen its own binding decision merely because relevant authority was overlooked or the earlier reasoning appears unjust. Under the exceptions in Young v Bristol Aeroplane, [1944] KB 418, departure requires conflicting Court of Appeal decisions, inconsistency with a House of Lords decision, or per incuriam. That last exception is narrow: an overlooked statute or binding authority must make the earlier decision demonstrably wrong. Applying the Supreme Court’s approach in Lumba, [2012] AC 245, Draga, [2012] EWCA Civ 842, remained binding. Even assuming an injustice exception, it would apply only where liberty was directly in issue, not to compensation sought after detention had ended.

The appellant, a Rwandan refugee convicted of serious offences, was made subject to a deportation order and detained for 242 days under Immigration Act 1971 Schedule 3 paragraph 2(3). The order was based on the 2004 Order, later held unlawful in EN (Serbia), [2010] QB 633. The appellant’s judicial-review claim for compensation was stayed. Following Draga, [2012] EWCA Civ 842, Collins J dismissed the claim by consent on 27 November 2014 because he was bound by that authority. The appeal challenged Draga as wrongly decided and per incuriam, and argued that the detention was unlawful because the underlying deportation order was unlawful. The central issue was whether this Court could revisit Draga.

Appeal dismissed. Arden LJ delivered the judgment, with which Longmore LJ and Lewison LJ agreed.

1. Doctrine of precedent. The Court of Appeal was bound by its own decisions, including Draga, subject only to the exceptions identified in Young v Bristol Aeroplane, [1944] KB 418: conflicting decisions of the Court of Appeal, inconsistency with a House of Lords decision, or per incuriam.
2. Per incuriam. Under Morelle v Wakeling, [1955] 2 QB 379, the exception requires an overlooked statute or binding authority to make the earlier decision demonstrably wrong. It is insufficient that relevant authorities were not considered or that the earlier court may have taken a different view. Any error in Draga’s application of the Supreme Court’s reasoning in Lumba, [2012] AC 245, was a matter for an appeal, not for the per incuriam exception. Khawaja, [1984] AC 74, and Evans, [2001] 2 AC 19, stated important principles, but did not create the necessary conflict on the same point.
3. Alleged injustice exception. The Court assumed, for argument, that an injustice exception might exist. If so, it had to be narrowly confined to cases where the subject’s liberty was directly engaged. It did not extend to a claim for compensation after a past deprivation of liberty had ended.
4. The right to freedom from wrongful detention was fundamental and applied equally to citizens and non-citizens. The interaction between Lumba and Draga was suitable for reconsideration by the Supreme Court, but this Court had no power to undertake that reconsideration. Permission to appeal to the Supreme Court was refused.

1. Court of Appeal (Civil Division): Appeal dismissed on 22 February 2018. Permission to appeal to the Supreme Court refused. [2018] EWCA Civ 273.
2. High Court (Queen’s Bench Division, Administrative Court): Collins J dismissed the claim by consent on 27 November 2014, treating Draga as binding. No citation for the order was stated.