Door open for Supreme Court to review the principles of unlawful detention claims
Can a foreign national be lawfully detained even though the decision to remove them from the UK is unlawful? Unfortunately, yes. However, a new case from the Court of Appeal suggests that the UK Supreme Court may need to review this state of affairs. Ben Amunwa writes
If the unlawful detention case of DN (Rwanda) v Secretary of State for the Home Department  EWCA Civ 273 becomes known for one thing, it’s likely to be because it has opened the door for the UK Supreme Court to re-consider the remedies available to individuals who have been indefinitely detained by the state.
If the government detains a foreign national unlawfully, the state will be strictly liable for the tort of unlawful imprisonment and the detainee will be entitled to damages for the duration of the period of detention. However, the measure of damages depends on the kind of unlawful error made by the State.
The detainee will only be entitled to nominal damages of £1 only if it was inevitable that they would have been detained lawfully anyway.
In order to obtain substantial compensation, the state’s public law error must be directly connected to the decision to detain. That is position of the UK Supreme Court in R (Lumba) v Secretary of State for the Home Department  1 WLR 671 (at §§ 95 to 101). In many cases, persons who have established liability on the part of the state come away with the modest vindication of a court judgment and a pound.
In the subsequent Court of Appeal case of Draga  EWCA Civ 842, in which Lumba was applied, Lord Justice Sullivan observed that the boundary between material and immaterial errors of law in this context was poorly defined (see § 60). It must, however, be acknowledged that it is difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to detain unlawful and those which will not. Errors of law are many and various and, as Lord Dyson said in paragraph 66 of Lumba:
“The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires….”
Despite its ambiguity, Draga has since been relied upon by the Secretary of State (with some enthusiasm) to suggest that she can detain non-UK nationals even if she has made an unlawful removal or deportation decision against them, and even though the individual could not be removed lawfully under such a decision. This is a questionable interpretation of the law, particularly in relation to EU nationals who are currently protected to some extent by the principle of free movement.
Arguably, the litmus test for whether an individual should be entitled to nominal or substantial damages, once it is established that the decision to detain them was unlawful, should be whether the state can prove on the facts that detention would have inevitably occurred (see R (LMC) v Secretary of State for the Home Department  EWHC 2016 (Admin) at § 78).
Given the close connection between removal decisions and decisions to detain, it is conceptually difficult to see how they can be treated separately for the purposes of liability and compensation for unlawful detention.
The Court of Appeal’s decision in DN (Rwanda)
The judgment in DN (Rwanda) begins with a promisingly robust statement on the constitutional significance of unlawful detention claims:
As Lord Bridge held in R (Khawaja) v Secretary of State for the Home Department  AC 74, 122, we should regard “with extreme jealousy” the power of the Executive to detain a person without trial. In addition, where a person is detained with a view to expulsion (or any other form of removal), there is an even stronger case “for a robust exercise of the judicial function of safeguarding a person’s rights.”
The Secretary of State had made a deportation order against DN but had used a piece of secondary legislation that was later found to be unlawful. At the time of the deportation order being made, the Secretary of State believed (wrongly) that the order was made under lawful legislation. On a judicial review challenge to his detention, the High Court found that the Claimant’s detention was lawful due to the conclusion in Draga, that only in limited circumstances would an unlawful deportation order taint a decision to detain (for example, if the state has made an order against the wrong person or if the deportation decision was in ‘bad faith’).
DN’s appeal was ultimately unsuccessful. In short, the Court of Appeal agreed with the High Court and was bound by its own conclusion in Draga.
To the UK Supreme Court?
The comments of the Court of Appeal at § 42 of Lady Justice Arden’s judgment are notable:
…it was always open to the Court of Appeal to say in its judgments if it thought that the House of Lords should look again at one of its own decisions. The same must apply to the Supreme Court. I can appreciate that the Supreme Court might well have considered it inappropriate to hear an appeal in Draga so soon after Lumba, but Mr Knafler’s argument in this case raises issues under both Draga and Lumba. The issues are in my judgment worthy of further consideration if that were possible. Detention would not have taken place in this case if the Secretary of State had not made an executive order which was tainted by public law error. That public law error was not and could not have been tested before the FTT in appeal proceedings. The right to freedom from wrongful detention at the hands of the state reflects a fundamental value of our society. There can be no distinction between citizens and others so far as this right is concerned. The right to a declaration as to the unlawfulness of the detention and (where appropriate) to compensation is but a way of vindicating that right and demonstrating its importance.
Two points arise.
Firstly, the Court has clarified that it has the authority to invite the UK Supreme Court to reconsider the approach of its judgments.
Secondly, the Court has opened the door to a challenge to Draga in the Supreme Court. While it seems unlikely that the Supreme Court would provide exhaustive guidance on the range of circumstances in which a public law error would give rise to liability and substantial damages, if it is presented with a set of of test cases that include some common scenarios, it may be in a position to elaborate on the broad guidance it has already provided in Lumba.
I’m happy to hear from other practitioners interested in collaborating on these points.