The appellant, a Rwandan national, was granted refugee status in the UK but was subsequently convicted of a number of offences. The Secretary of State for the Home Department has powers, under the Nationality, Immigration and Asylum Act 2002 to order the deportation of persons convicted of serious offences, which included an offence committed by the appellant. The Secretary of State ordered the appellant’s detention pending deportation and the appellant initially sought judicial review of the deportation order, only to then focus on the lawfulness of the detention. Following the decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed the appellant’s substantive appeal. The Supreme Court overturned the decision.
1951 Refugee Convention
Nationality, Immigration and Asylum Act 2002
Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004
Immigration Act 1971
The appellant is a Rwandan national who was granted refugee status in the UK pursuant to the 1951 Refugee Convention, but who was subsequently convicted in the UK of a number of offences, the most serious of which being the fact that he assisted the unlawful entry of a non-European Economic Area national in the UK, contrary to section 25 of the Immigration Act 1971. The Secretary of State for the Home Department has powers, under the Nationality, Immigration and Asylum Act 2002 to order the deportation of persons convicted of serious offences. Section 72(4)(a) of the 2002 Act provides that a person shall be presumed to have been convicted of a particularly serious crime and to constitute a danger to the community of the UK if s/he is convicted of an offence specified by order of the Secretary of State. The Secretary of State specified several offences by way of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (“the 2004 Order”), and assisting unlawful immigration contrary to section 25 of the 1971 Act was included among them.
The appellant was sentenced to 12 months’ imprisonment for the Immigration Act offence and two months consecutively for each of three pecuniary advantage offences making a total sentence of 18 months’ imprisonment. At the conclusion of the appellant’s imprisonment, the Secretary of State made a decision to deport the appellant, based on s. 72(4)(a) of the 2002 Act. The appellant brought a claim for judicial review of the deportation order, however then amended his judicial review proceedings to concentrate on the lawfulness of the detention. In the meantime, the 2004 Order had been found to be unlawful in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633. Following a stay in the proceedings and the issuance of the decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed the appellant’s substantive appeal.
Given that this is an appeal to the Supreme Court, the appellant’s arguments are not novel. Crucially, in the previous proceedings, the appellant had challenged the 2004 Order as unlawful and invited the Secretary of State to revoke the deportation order. The appellant also claimed that the detention flowing from the 2004 Order was unlawful. The appellant therefore sought judicial review, claiming that the deportation order should be quashed because the 2004 Order was ultra vires the 2002 Act, and sought declaratory relief in respect of the lawfulness of his detention. Proceedings were stayed pending the decision in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633, which ultimately found the 2004 Order to be unlawful. The appellant therefore focused on the lawfulness of his detention after this point.
In judicial review cases, the opposing party (i.e. the Secretary of State) does not bring legal arguments. The decision by the Secretary of State to detail the appellant is scrutinised by the court and the original reasons given by the Secretary of State are assessed.
The Supreme Court unanimously allowed the appeal. It held that the appellant was unlawfully detained and was entitled to pursue a claim for damages for false imprisonment.
The Court made the following key points:
- If, and inasmuch as, R. v Secretary of State for the Home Department Ex p. Ullah (Mohammed) [1994] 6 WLUK 277 suggested that Schedule 3 paragraph 2(2) of the 1971 Act provided a stand-alone authority for lawful detention, no matter what had gone before, and irrespective of the fact that the decision to deport lacked a legal basis, that decision was wrong. The detention depended for its legality on the lawfulness of the deportation itself.
- The case of R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 made it clear that there is no difference between a detention that is unlawful because there was no statutory power to detain and a detention that is unlawful because the decision to detain was made in breach of a rule of public law. In this case, as in Lumba, there was no statutory power to detain. The 2004 Order upon which the decision to deport was based was ruled unlawful in EN (Serbia). As detention was for the express purpose of facilitating deportation, without a lawful deportation order the occasion for detention simply does not arise. Hence, the detention was unlawful. The lawfulness of detention is always referable back to the legality of the decision to deport, and this is not an instance of a series of successive steps, each having an independent existence.
- Draga was wrongly decided for two reasons. First, the judge presiding the case sought to distinguish it from R v Governor of Brockhill Prison, Ex p Evans (No 2) [2002] 2 AC 19 on unpersuasive grounds. In this case, it could not be said that the Secretary of State was acting within the four corners of a court order relating to the applicant’s detention. Rather, the decision of the tribunal related only to deportation. Second, the judge’s reliance on the “second actor theory” was misplaced: where the Secretary of State is directly responsible for making the order later found to be unlawful, it would be odd if it could rely on it to support the validity of later actions based on it.
Appeal allowed.
R. (on the application of Hemmati) v Secretary of State for the Home Department [2019] UKSC 56
R. (on the application of Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842
R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12
EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630
R. v Secretary of State for the Home Department Ex p. Ullah (Mohammed) [1994] 6 WLUK 277
R. (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46
R. (on the application of Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23
R. (on the application of Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036
R. v Governor of Brockhill Prison Ex p. Evans (No.2) [2001] 2 AC 19
Boddington v British Transport Police [1999] 2 AC 143
Percy v Hall [1997] QB 924
R. v Deputy Governor of Parkhurst Prison Ex p. Hague [1992] 1 AC 58
Arnold v National Westminster Bank Plc (No.1) [1991] 2 AC 93
R. v Secretary of State for the Environment Ex p. Hackney LBC [1984] 1 WLR 592
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Thoday v Thoday [1964] P 181
KC (South Africa) v Secretary of State for the Home Department [2010] QB 633
R (Hemmati) v Secretary of State for the Home Department [2019] UKSC 56
Ullah v Secretary of State for the Home Department [1995] Imm AR 166
D v Home Office [2005] EWCA Civ 38
Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273
Watts v Ashan [2007] UKHL 51
Ocampo v Secretary of State for the Home Department [2006] EWCA Civ 1276
Khawaja v Secretary of State for Home Department [1984] AC 74
R (East Hertfordshire District Council) v First Secretary of State [2007] EWHC 834 (Admin)
R (Reprotech) v East Sussex County Council [2002] UKHL 8