The Supreme Court has this week heard argument in an appeal by DN that he was falsely imprisoned by the Secretary of State.
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 (“Draga”).
Before the Supreme Court, the issues included whether the Lumba test (whether the error “bears on and is relevant to” detention) applies in these circumstances, the relevance of the second actor theory, whether Ullah v Home Secretary  Imm AR 166 should be overruled and whether Percy v Hall  QB 924 should be overruled.
The Court of Appeal judgment can be found here.
Stephen Knafler QC, Gordon Lee and Yaaser Vanderman appeared for the Appellant. They were instructed by Paul Nettleship at Sutovic & Hartigan.