The Supreme Court of the United Kingdom rendered the judgment on Wednesday allowing the appeal of a refugee to pursue a claim for damages against the Government for unlawful detention.
"I would allow the appeal and confirm that the appellant is entitled to pursue a claim for damages for false imprisonment", said Lord Carnwath in the unanimous judgment given by a 5-judge bench.
The appellant, DN(original name kept anonymous in judgment), is a Rwandan national who came to the UK seeking refugee status because of his fear of persecution if he returned to his native land. His claim was accepted going by the fact that he belonged to the social group called Hutu.
The Hutu are an ethnic or social group native to the African Great Lakes region of Africa, an area primarily in Burundi and Rwanda. The appellant was recognized as a refugee in accordance with the 1951 Refugee Convention and granted indefinite leave to remain.
The court observed that ever since his arrival in the UK, the appellant was convicted in a number of offenses and was also cautioned twice. One of the most serious offense was when he pleaded guilty to assisting the unlawful entry of a non-EEA (Europian Economic Area) national to the UK.
On the completion of his custodial punishment for several offenses, the Home Secretary decided to deport him under Section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. This order was followed by a decision on deporting the appellant under Article 33(2) of the Refugee Convention.
Article 33(2) of the Refugee Convention allows the expulsion of refugees "whom there are reasonable grounds for regarding as a danger to the security of the country". It was said that the appellant had been convicted of a "particularly serious crime" and that he "constituted a danger to the community".
Subsequently, the appellant sought judicial review with regard to the order of deportation. His appeal was heard by the Asylum and Immigration Tribunal (AIT) and was dismissed. The appellant again sought a reconsideration of the decision of AIT and the same was refused.
Thereafter the Secretary of the State signed the deportation order. It was found that before the signing of the deportation order, no suggestion was made on the appellant's behalf that the said order was unlawful.
Eventually, it was found that the appellant's detention order was unlawful and hence the Secretary of the State was invited to revoke the deportation order. The appellant thereupon was released on bail by order of an immigration judge. The court noted that by that time, the appellant had already spent 242 days in immigration detention.
On 20 March 2008, the appellant sought judicial review and claimed that the deportation order should be quashed and to declare it ultra vires the Nationality, Immigration and Asylum Act 2002. He also claimed damages and declaratory relief in respect of the unlawful detention.
On March 2010 the Home Secretary wrote to the appellant informing him that Article 33(2) of the Refugee Convention was no longer relied as a basis for his deportation, instead cited article 1(C)(5) of the Convention (the cessation clause) which says,
" "This Convention shall cease to apply to any person falling under the terms of section A if: …
(5) He can no longer because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ..."
The court observed that if there is an appeal against the notice of the Secretary of State in making deportation order, the same should not be proceeded to the second stage i.e., the making of the deportation order. This was held in the case of R (Draga) v. Secretary of State for the Home Department. it was said,
" Making a deportation order is a two-stage process. First the Secretary of State must serve notice of the decision to make a deportation order. The notice explains that there is a right of appeal under section 82(1) against the decision, and sets out of (sic) the grounds of appeal under section 84(1). Those grounds are not limited to the ground that removal in consequence of the decision would be unlawful under the Refugee Convention or the ECHR, they enable the person served with the notice to challenge the lawfulness of the notice on the basis of any breach of a rule of public law: 'that the decision is otherwise not in accordance with the law' … If there is an appeal the Secretary of State may not proceed to the second stage of the process - the making of the deportation order - until the appeal has been finally determined …"
The court also relied on the decision of the UK Supreme Court in R (Lumba) v. Secretary of State for the Home Department where Lord Dyson said,
" To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained. The Secretary of State must prove that the detention was justified in law. She cannot do this by showing that, although the decision to detain was tainted by public law error … a decision to detain free from error could and would have been made."
Further, the court relied on the decision of D v. Home Office where the Court of Appeal said,
"… we are at liberty, unconstrained by binding authority, to interpret Schedule 2 to the 1971 Act without any preconceived notions. If we do so, there is nothing there to suggest that Parliament intended to confer immunity from suit on immigration officers who asked themselves the wrong questions, so that their decision to deprive an immigrant of his liberty was a nullity and consequently unlawful."
The Court of Appeal in D v. Home Office also noted that the immigration officers have no immunity conferred under Schedule 2 of the 1971 Act since they deprived an immigrant of his liberty which was a nullity and consequentially unlawful.
Accordingly the court, in this case, allowed the appeal and confirmed that the appellant, a refugee identified under the Refugee Convention 1951, is entitled to pursue a claim for damages from the Government for false imprisonment.
" Since the Secretary of State has not hitherto relied on the principle of res judicata or issue estoppel, it would clearly be unfair to DN for the court to introduce it at this stage as a possible reason for determining the appeal against him, whatever the position may be in future cases. On the arguments as presented to us, for the reasons set out earlier in this judgment, I would allow the appeal."
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