This was the central question which arose in the context of an unlawful detention claim, initially dismissed by the High Court in Johnson v Secretary of State for the Home Department [2022] EWHC 3120 (KB) and then again in the recently reported appeal in Johnson v Secretary of State for the Home Department [2024] EWCA Civ 182.

While deciding a narrow legal point, the judgment is perhaps at its most revealing in describing the anatomy of a removal, and then return to the UK, of a foreign national offender who is not accepted for entry by a receiving state.

Background

Mr Johnson was born in the UK on 1 October 1989, although he was not a British citizen on account of his Ugandan parents.

He was convicted of an offence of aggravated burglary and sentenced to eight years. He already had 17 previous convictions. On 16 February 2014 a deportation order was made. He was detained after his sentence and removal attempted to Uganda on 9 December 2014.

On 10 December, the Ugandan authorities refused to accept Mr Johnson on arrival at Entebbe, with concerns expressed that he may not actually be a Ugandan citizen. The receiving authorities apparently also expressed concern that Uganda was being used as a ‘dumping ground’ for criminals raised in the UK (para 39).

After his return, the Home Office continued to detain Mr Johnson until 18 June 2015 due to an assessed high risk of offending and harm. Ultimately it was accepted that the Ugandan authorities did not consider that Mr Johnson still had Ugandan citizenship and that he was stateless.

Unlawful detention claim

Mr Johnson claimed that his detention was unlawful because his deportation order had not been lawfully made and that there was therefore no lawful authority to detain per R (DN (Rwanda)) v Secretary of State for the Home Department (BID Intervening) [2020] UKSC 7.

Mr Johnson argued that the court should interpret the automatic deportation regime to avoid the absurd result that a stateless person could be deported. The arguments concerned the proper interpretation of sections 32(1) and (5) of the 2007 Act.

The Court of Appeal found that it was not possible to say the obligation to make a deportation order has absurd results simply because a person who is required to leave the United Kingdom cannot, or cannot at present, be removed (para 61).

Mr Johnson asked why, then, had the deportation order been revoked (which it eventually was) unless it would clearly be absurd to leave in place? But the Court of Appeal found that the decisions of civil servants in individual cases should not aid statutory interpretation.

Considering Hardial Singh – that a person may only be detained for a period that is reasonable in all the circumstances – Mr Johnson argued that the Home Office knew in March 2014, or in September 2014, about difficulties with returning persons born in the United Kingdom to Uganda (para 76).

But the Court of Appeal found that the court below was entitled to find that the exercise of the power to detain, and to continue to detain, the appellant was lawful (paras 79-87) for the reasons given by the High Court as listed (para 52).

The appeal was dismissed by the Court of Appeal.

State of deportation

Neither the High Court nor the Court of Appeal were considering the substance of Mr Johnson’s appeal against deportation, but it is worth reflecting on this briefly.

Mr Johnson was born in the UK. It appears his first trip outside of the country was on the removal flight in December 2014. He had tried to hang himself while in detention in April 2014. 

It was said by the presiding judge in the First-tier Tribunal that he ‘totally failed to meet the “exceptional circumstances” test’ required to succeed in his appeal (see High Court judgment para 49).

Mr Johnson represented himself at his First-tier Tribunal hearing. No expert reports are mentioned.

The courts have struggled over the years to strike a consistent balance between the public interest in deportation and the weight of a private life lived nowhere else (see for example Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098 (write-up here)).

So although it is difficult to comment without seeing the determination, it is very difficult to see how a deportation appeal involving any person born in the UK and who had never left could ‘totally fail’ to meet the exceptional circumstances test. But with no legal aid available in deportation cases – for lawyers or perhaps more crucially, for expert reports – it is easy to see how unrepresented litigants might struggle to advance their strongest case.