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Landmark detention precedents should be revisited, Lady Justice Arden suggests


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The Court of Appeal has lit a distress beacon on damages for wrongful detention, with Lady Justice Arden signalling that the Supreme Court should look again at case law that denies a remedy to people detained on the basis of Home Office decisions that turned out to be unlawful. The case is DN (Rwanda) v Secretary of State for the Home Department [2018] EWCA Civ 273.

The appellant was a refugee who had committed serious criminal offences and was detained pending deportation, back in 2008. The deportation order was stymied when the Court of Appeal held, in 2009, that the power to deport refugees on which the Secretary of State relied was ultra vires. Released before that judgment — EN (Serbia) v Secretary of State for the Home Department & Anor [2009] EWCA Civ 630 — was handed down, DN had nevertheless spent 242 days in detention.

DN went on to seek damages for unlawful detention but was denied in the High Court on the basis of the binding precedent in Secretary of State for the Home Department v Draga [2012] EWCA Civ 842. In that case, the Court of Appeal “held that the unlawful decision to deport did not bear on the decision to detain”. As such, DN “was lawfully detained even if the deportation order was unlawful”.

The upshot, according to the submissions of Stephen Knafler QC, was that DN “has no remedy for his detention, even though the deportation order on which it was based was unlawful”.

Four years later, DN was granted permission to appeal. This was not on the basis of any change in the law since Draga; the argument was that

Draga was (a) wrongly decided and (b) decided per incuriam, and that this Court should revisit the arguments on which it was based.

Arden LJ and colleagues declined to do so, holding that Draga — and the underpinning decision R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 — was binding on them. While “prepared to assume for the purposes of argument that there is an exception to the doctrine of precedent where the application of a prior decision of this Court was unjust”, such an exception would have to be narrowly interpreted. It would only apply where “the liberty of the subject [is] directly involved” as opposed to after the event (DN having long since been released).

All the same, the court clearly harboured grave reservations about the lack of remedy afforded DN by virtue of those precedents. The closing lines are a clear elbow in the ribs of the Supreme Court:

42. I can appreciate that the Supreme Court might well have considered it inappropriate to hear an appeal in Draga so soon after Lumba, but Mr Knafler’s argument in this case raises issues under both Draga and Lumba. The issues are in my judgment worthy of further consideration if that were possible. Detention would not have taken place in this case if the Secretary of State had not made an executive order which was tainted by public law error. That public law error was not and could not have been tested before the FTT in appeal proceedings. The right to freedom from wrongful detention at the hands of the state reflects a fundamental value of our society. There can be no distinction between citizens and others so far as this right is concerned. The right to a declaration as to the unlawfulness of the detention and (where appropriate) to compensation is but a way of vindicating that right and demonstrating its importance.

43. For these reasons I would dismiss this appeal. I would, however, refuse permission to appeal because the decision whether to take another look at Lumba and Draga must be a matter for the Supreme Court.

Over to you, Lady Hale.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.