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Detention and the law – another Supreme Court decision

This is the third decision on this topic in recent months and comes after the cases of R (Hemmati & Ors) v Secretary of State for the Home Department…

Last week saw yet another judgment from the Supreme Court (“SC”) on the issue of false imprisonment. This is the third decision on this topic in as many months and comes after the cases of R (Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC 56 and R (Jalloh (Liberia)) v Secretary of State for the Home Department [2020] UKSC.

In R (DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, the SC was concerned with the appeal of DN, a Rwandan national who was granted refugee status in the UK. He was subsequently convicted of a number of offences, the most serious of which was assisting unlawful entry of a non-EEA national. At the conclusion of his prison term, the Secretary of State used the powers under the Nationality, Immigration and Asylum Act 2002 to order deportation. DN’s offence was a “particularly serious crime” for the purposes of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (“the 2004 Order”). The Secretary of State ordered DN’s detention pending deportation.

DN initially sought judicial review of the deportation order. However, following a Court of Appeal decision which determined that the 2004 Order was unlawful (EN (Serbia) [2009] EWCA Civ 630), DN amended his judicial review proceedings to concentrate on the lawfulness of the detention.

The SC unanimously ruled that the detention was unlawful and DN was entitled to pursue a claim for damages for false imprisonment. There was no statutory power to detain because the 2004 Order upon which the decision to deport was based was unlawful. The detention was for the express purpose of facilitating deportation and “without the existence of a deportation order, the occasion for (much less the validity of) detention would simply not arise” (per Lord Kerr, paragraph 17).

The court reiterated with approval the judgment in R (Lumba) v SoS for the Home Department [2011] UKSC 12, unquestionably the leading decision in an area of the law that seems to consistently come before the courts. As confirmed in Lumba, 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. The prospects of success of DN’s damages claims remain to be determined and will depend on issues not canvassed in the SC.

If you would like to discuss further, please liaise with Peter Wake at peter.wake@weightmans.com or Martin Forshaw at martin.forshaw@weightmans.com

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