Supreme Court allows Appellant’s appeal in DN (Rwanda) and overturns Draga

The Supreme Court has today allowed the Appellant’s appeal in DN (Rwanda). In doing so, it has overturned the long-standing Court of Appeal decisions in R (Draga) v SSHD [2012] EWCA Civ 842 (“Draga”) and Ullah v SSHD [1995] Imm AR 166. In 2007, the Secretary of State made a deportation order in respect of DN, a refugee, because the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (the “2004 Order”) imposed a presumption that he was convicted of “a particularly serious crime” and “constitutes a danger to the community”. The crime he had been convicted of was facilitating a breach of immigration law by his niece. He was detained as a result for 242 days. Subsequently, in 2009, the Court of Appeal in EN (Serbia) v SSHD [2009] EWCA Civ 630 found that the 2004 Order was ultra vires. DN’s judicial review, including a claim for false imprisonment, argued that because the 2004 Order – the foundation of his deportation order and detention – was void, the Secretary of State was liable in false imprisonment. This claim failed in the High Court and Court of Appeal due to the authority of R (Draga) v SSHD [2012] EWCA Civ 842. Applying R (Lumba) v SSHD [2012] 1 AC 245, the Supreme Court agreed with the Appellant, finding that a claim in false imprisonment was open to the Appellant. In addition, Lord Carnwath made some obiter remarks on the applicability of res iudicata in judicial review and public law cases. Stephen Knafler QC and Yaaser Vanderman appeared for the Appellant, along with Gordon Lee, instructed by Paul Nettleship of Sutovic & Hartigan.

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