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  EWCA Civ 842 (“Draga”) and Ullah v SSHD  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  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  EWCA Civ 842.
Applying R (Lumba) v SSHD  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.