DN (Rwanda), R (on the application of) v Secretary of State for the Home Department [2020] UKSC 7

A Rwandan refugee was detained pending deportation based on the 2004 Order specifying particularly serious crimes. The Order was later declared ultra vires. The Supreme Court held that detention founded on an unlawful deportation order was itself unlawful, entitling the appellant to pursue damages for false imprisonment.

Facts

The appellant, DN, a Rwandan national, was granted refugee status in 2000 as a Hutu. Following convictions in 2007 including assisting unlawful immigration contrary to section 25 of the Immigration Act 1971, the Home Secretary decided to deport him pursuant to article 33(2) of the Refugee Convention, relying on the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. DN was detained for 242 days pending deportation. In 2009, the Court of Appeal in EN (Serbia) held that the 2004 Order was ultra vires and therefore unlawful. DN sought damages for false imprisonment.

Procedural History

DN’s appeal against deportation was dismissed by the Asylum and Immigration Tribunal in 2007. Following EN (Serbia), DN sought judicial review claiming the deportation order should be quashed and damages for unlawful detention. The High Court dismissed his claim following the Court of Appeal decision in Draga, which held that flaws in the deportation decision did not render the detention unlawful. The Court of Appeal dismissed DN’s appeal but indicated the issues warranted further consideration.

Issues

The central issue was whether detention pursuant to a deportation order based on an ultra vires statutory instrument was itself unlawful, giving rise to a claim for damages for false imprisonment, or whether the statutory appeal scheme provided a complete answer insulating the detention from challenge.

Judgment

The Supreme Court unanimously allowed the appeal, holding that Draga was wrongly decided. Lord Kerr, delivering the lead judgment, applied the principle from R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.

In principle there is no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law.

Lord Kerr emphasised that the detention was inextricably linked to the deportation order:

The making of a deportation order is, as Sullivan LJ said, a two-stage process, involving (a) notice of a decision to deport and (b) the making of the deportation order. Detention at both of these stages is entirely dependent on the decision to deport. Without that decision the question of detention could not arise, much less be legal.

The Court rejected the argument that the statutory appeal process or the need for finality in litigation could displace the Lumba principle. Lord Kerr stated:

The desiderata of finality and certainty cannot impinge on that inevitable result.

Lord Carnwath’s Concurring Judgment

Lord Carnwath agreed with the result but provided additional analysis on why Draga was wrongly decided. He noted that no specific rule of law displaced the Lumba principle, and the mere existence of a statutory appeal right could not take away a clear common law right. He also raised the potential relevance of res judicata and issue estoppel for future cases, though these arguments were not pursued by the Secretary of State.

Implications

This decision reinforces the principle that immigration detention must be founded on lawful authority. Where the underlying deportation decision is based on unlawful secondary legislation, the consequent detention is itself unlawful, regardless of any intervening appeal decisions. The case clarifies that the statutory immigration appeal framework does not immunise the Secretary of State from claims for false imprisonment when detention is founded on ultra vires orders. It also confirms that finality in litigation cannot override fundamental common law rights protecting personal liberty.

Verdict: Appeal allowed. The appellant is entitled to pursue a claim for damages for false imprisonment arising from his detention pending deportation based on the ultra vires 2004 Order.

Source: DN (Rwanda), R (on the application of) v Secretary of State for the Home Department [2020] UKSC 7