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Important Court of Appeal decision on public law errors and immigration detention

DATE: 26 Feb 2018

On 22 February 2018 the Court of Appeal gave judgment in DN (Rwanda) v Secretary of State for the Home Department [2018] EWCA Civ 273 (judgment here). 

The Appellant in DN was a recognised refugee who was facing deportation from the United Kingdom following his conviction for serious offences. The decision to deport him was made in reliance on the terms of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. He was subsequently detained pending his deportation from the United Kingdom for 242 days. 

Following DN’s release from detention, the 2004 Order was held by the Court of Appeal to be unlawful, with the consequence that the decision to deport him had itself been unlawful. The issue in the appeal was whether in those circumstances, where the error of law in the deportation decision only became apparent after the detention had ended, it had any bearing on the lawfulness of detention. 

The Court of Appeal had considered this situation before in R(Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842 (judgment here). In Draga it was concluded that whilst, prima facie, there were grounds to think detention premised on an unlawful deportation decision was unlawful, such a conclusion “[did] not pay sufficient regard to the statutory scheme as a whole.” Where a right of appeal existed, the Secretary of State was entitled to rely on the exhaustion of appeal rights as demonstrating the lawfulness of a decision, even where this was subsequently shown to be incorrect. 

Draga is a controversial decision. In DN (Rwanda) permission to appeal was granted on the unusual basis that the Court of Appeal might be persuaded to depart from its own judgment in that case. In the event, the Court held that the doctrine of precedent precluded its departing from Draga, and dismissed the appeal for that reason. In so concluding, however, Arden LJ made clear that she saw force in some of the criticisms levelled at the Draga decision, and stated that these issues were “worthy of further consideration if that were possible.” Permission to appeal to the Supreme Court was refused on the basis that that Court should decide for itself whether to consider the issues arising. DN shall appeal to the Supreme Court. 

Stephen Knafler QC of Landmark Chambers acted for DN, with Gordon Lee of Lamb Building, instructed by Paul Nettleship of Sutovic & Hartigan.

Graham Denholm of Landmark Chambers has written an article for LexisPSL about the issues arising from this case which can be accessed here.