R (on the application of DN (Rwanda)) v Secretary of State for the Home Department

Detention pending deportation under Schedule 3 to the Immigration Act 1971 depends on a lawful decision to deport. An invalid deportation decision or order cannot provide lawful authority for detention founded upon it. A tribunal’s dismissal of a statutory appeal does not cure the error or sever that legal dependency.

Finality and legal certainty cannot extinguish the detainee’s common-law rights without a specific rule of law. In false imprisonment proceedings, the claimant must prove detention. The detaining authority must then establish lawful justification and cannot rely on a hypothetical decision which could lawfully have been made.

DN, a recognised Rwandan refugee, was convicted of assisting unlawful entry and other offences. The Secretary of State decided to deport him under a statutory presumption created by the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. He was detained for 242 days under paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971.

In EN (Serbia) v Secretary of State for the Home Department; KC (South Africa) v Secretary of State for the Home Department [2010] QB 633, the Court of Appeal held that the 2004 Order was ultra vires. Nevertheless, the High Court dismissed DN’s claim for false imprisonment by consent because the parties regarded R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842 as binding. The Court of Appeal dismissed DN’s appeal: [2018] EWCA Civ 273; [2019] QB 71.

The central issue was whether detention founded on an unlawful deportation decision remained lawful because the statutory appeal process had been completed.

1. Appeal allowed unanimously. Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agreed, held that the appellant was entitled to pursue his claim for damages for false imprisonment. Lord Carnwath agreed that the appeal should be allowed on the arguments presented.

2. The principle in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 applied with full force. For false imprisonment, the claimant proves detention and the detaining authority must establish lawful justification. There is no relevant distinction between detention for which no statutory power exists and detention resulting from a statutory power exercised in breach of public law. A decision which could and would lawfully have been made cannot retrospectively justify the detention that actually occurred.

3. Detention under paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971 was wholly dependent on the decision to deport and the resulting deportation order. Notice of the decision, the order and detention were essential steps in the same transaction. The invalidity of the deportation decision therefore deprived the detention of lawful authority.

4. The tribunal’s dismissal of the statutory appeal did not remove the underlying error or create a break between deportation and detention. A statutory appeal, finality and legal certainty could not displace a clear common-law right without a specific statutory or other legal rule. No such rule applied. R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842 was wrongly decided.

5. Ullah v Secretary of State for the Home Department [1995] Imm AR 166 was also wrong insofar as it treated paragraph 2(2) as stand-alone authority for detention whenever notice had been given, irrespective of whether the decision to deport had a lawful basis. Paragraph 2(2) could not give legal effect to detention founded on an unlawful deportation process.

6. The Supreme Court determined only that the appellant could pursue his damages claim. It did not decide the claim’s prospects or any defences which might be advanced at trial.

7. Lord Carnwath considered in a separate concurring judgment that res judicata or issue estoppel might bar comparable claims where a competent tribunal had finally determined the relevant legality issue. The Secretary of State had not relied on either doctrine, so it would have been unfair to decide the appeal against DN on that unargued basis. Lord Kerr expressly declined to express even a tentative view on its possible application.

1. United Kingdom Supreme Court: In R (on the application of DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7 , the court unanimously allowed the appeal and held that the appellant could pursue his false imprisonment claim.

2. Court of Appeal: The court dismissed the appeal because it considered itself bound by R (Draga) v Secretary of State for the Home Department. Its decision is reported as [2018] EWCA Civ 273 ; [2019] QB 71 .

3. High Court: On 27 November 2014 Collins J dismissed the judicial review claim by consent. Both parties had agreed that R (Draga) v Secretary of State for the Home Department was binding and that no substantive hearing was required.

4. Earlier administrative proceedings: The Asylum and Immigration Tribunal dismissed the appellant’s appeal against deportation in August 2007. Reconsideration and a statutory review application were subsequently refused.