DN (Rwanda) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Lewison,Lady Justice Arden |
| Judgment Date | 22 February 2018 |
| Neutral Citation | [2018] EWCA Civ 273 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2015/0034 |
| Date | 22 February 2018 |
[2018] EWCA Civ 273
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Longmore
and
Lord Justice Lewison
Case No: C4/2015/0034
Stephen Knafler QC and Gordon Lee (instructed by Sutovic & Hartigan Solicitors) for the Appellant
Julie Anderson (instructed by The Government Legal Department) for the Respondent
Hearing dates: 18 January 2018
ISSUE FOR DETERMINATION AND SUMMARY OF CONCLUSION
As Lord Bridge held in R (Khawaja) v Secretary of State for the Home Department [1984] AC 74, 122, we should regard “with extreme jealousy” the power of the Executive to detain a person without trial. In addition, where a person is detained with a view to expulsion (or any other form of removal), there is an even stronger case “for a robust exercise of the judicial function of safeguarding a person's rights.” (loc.cit.). In this case, the appellant is no longer detained but he seeks compensation for detention. That detention was for the purposes of deportation pursuant to an order made by the Secretary of State which, as a result of a later decision of this Court, is now appreciated to have been wrongly made.
The appellant is a Rwandan national who had been granted refugee status but who had subsequently been convicted in the UK of serious offences. At the conclusion of his term of imprisonment, the Secretary of State informed him that she proposed to deport him. She made a deportation order using powers conferred by the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (“the 2004 Order”), made pursuant to s.72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). These powers deemed the appellant's offences automatically to constitute “particularly serious offences” for the purpose of Article 33(2) of the Refugee Convention. The aim of the powers was to enable the Secretary of State to deport a person even if he had previously been granted refugee status.
The appellant appealed against the Secretary of State's decision to make a deportation order but his appeal was unsuccessful. By the end of 2007, he had exhausted all avenues of appeal. On 31 January 2008, the Secretary of State, using her powers of administrative detention conferred by the Immigration Act 1971 (“the 1971 Act”), schedule 3 paragraph 2(3) made an order for the appellant's detention pending deportation. Paragraph 2(3) contains a broad power to detain:
Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph ( 1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).
The appellant thereupon brought a claim for judicial review of the deportation order, seeking to quash the order, to obtain a declaration that the operation of s.72 of the 2002 Act was incompatible with Directive 2004/83/EC and Article 6 of the European Convention on Human Rights (“the Convention”), and to seek declaratory relief and damages for unlawful detention. Those proceedings were, however, stayed to enable the question of the legality of the powers under which the deportation order had been made to be resolved in other proceedings. Those other proceedings led to the judgment of this Court in EN (Serbia) v Secretary of State for the Home Department [2010] QB 633, where this Court (Laws, Hooper and Stanley Burnton LJJ) held that the 2004 Order was ultra vires and consequently unlawful. In particular this Court held that, for the purpose of removing international protection, the Refugee Convention did not permit there to be an automatic presumption as to what was a serious offence and the person in question had to constitute a danger to the community.
Before the judgment in EN Serbia was delivered, the appellant was released from detention. However, he had spent 242 days in detention pending deportation.
The appellant's proceedings were, however, once more brought to a halt, this time potentially on a permanent basis, by another decision of this Court: R (o/a Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842. In that case, the respondent was a Kosovan national who had refugee status. The facts were complex, and I will refer to the material facts necessary to understand the relevant parts of this Court's decision. The appellant had been convicted of a serious offence. The Secretary of State made a deportation order against him again using her powers in the 2004 Order. The time for appealing against that order expired. Mr Draga was then detained and he appealed unsuccessfully against his deportation.
Mr Draga also began judicial review proceedings which were stayed pending the decision in EN Serbia. After that decision, the Secretary of State stated that he had lost his refugee status due to a change in the circumstances in Kosovo. The First-tier Tribunal (FTT) held that the cessation order was a device to deport him and therefore unlawful and that the deportation order was unlawful. Mr Draga was released from detention. Nonetheless, this Court (Pill, Sullivan and Kitchin LJJ) (reversing the judge in part) held that the detention was lawful up to the point in time when the Secretary of State issued the cessation order. After that time, it was unlawful.
Applying that reasoning here would mean that the appellant too was lawfully detained even if the deportation order was unlawful. On 27 November 2014, Collins J accordingly dismissed his claim by consent because Draga was binding on him. The Chancellor, Sir Geoffrey Vos, has, however, given permission to appeal to this Court against that order. On this appeal the appellant contends that Draga was (a) wrongly decided and (b) decided per incuriam, and that this Court should revisit the arguments on which it was based.
I propose to summarise my conclusion at this point. After careful consideration of the parties' submissions, I have concluded that Draga is binding in this Court and that none of the routes put forward for taking a different course is open to us. In particular, as I will explain, Draga is a decision of this Court applying the recent decision of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] AC 245. It is directly binding on us and there is no basis for holding that it was decided per incuriam. Any departure from Draga is now a matter for the Supreme Court.
I need to examine the reasoning of this Court in Draga in a little more detail. As it turns on the decision of the Supreme Court in Lumba I need first to consider the relevant reasoning in Lumba. I will then summarise the relevant principles from the doctrine of precedent, the parties' submissions and (under the heading Discussion, below) the full reasons for my conclusions.
. R (LUMBA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Lumba resolves a dispute that had developed in the lower courts as to whether detention of a foreign national prisoner, who was subject to a deportation order, could result in liability for false imprisonment where the Secretary of State made a public law error. The answer given by the Supreme Court was that there is no distinction between detention where there was no authority to detain and detention where the authority stemmed from a public law error. There was a public law error in that case because the detention was ordered under an unpublished policy which provided for a blanket detention of all foreign national prisoners on release from prison.
The Supreme Court then considered when the detention resulting from the public law error could result in a liability for substantial damages.
The Supreme Court held by a majority that false imprisonment was actionable regardless of whether the victim suffered harm. Moreover, a breach of the principles of public law could in an appropriate case found an action at common law for damages of false imprisonment although not every breach of public law was sufficient to give rise to such a cause of action. However, the breach had to “bear on and be relevant to” the decision to detain. Lord Dyson, giving the majority judgment, held:
68. I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr. Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain.
The Secretary of State was liable for the tort of false imprisonment. She had the burden of showing that the detention was justified in law. She could not do this because it was tainted by public law error. The fact that some of the claimants could have been detained lawfully did not render their detention lawful.
On the other hand, if it was shown that a claimant would have been lawfully detained in any event, he suffered no loss or damage as a result...
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