ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR NEIL GARNHAM QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE KITCHIN
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Manjit Gill QC and Gordon Lee (instructed by Messrs Sutovic & Hartigan) for the Respondent
Hearing dates: 15th & 16th May 2012
Crown Copyright ©
Lord Justice Sullivan:
"Having taken all the above into consideration I am of the opinion that deportation would not be appropriate in this case. Please advice (sic) on the way forward."
"…having read the previous minute I am of the opinion that this should go to a SCW [Senior Case Worker] at CCT to confirm a DO [Deportation Order] is not being pursued."
"Subject was granted asylum/ILR on 5/12/01. As a Gorani it was accepted that he had a well-founded fear of persecution. Subject came to CCT notice following his conviction on 18/5/05 for possession of drugs with intent, he was sentenced to 18 months detention in a YOI, not recommended [for deportation]….the subject was fined in April 2005 for criminal damage and sentenced to 3 months YOI for having a blade in a public place in June 2005. The subject, a person with refugee status has been sentenced for less than 2 [years] as such we would not pursue deportation action."
"Even though this subject has been sentenced to less than two years, this case should be pursued under s.72(4) of the 2002 NIA Act. His offence (possession of class A with intent to supply) has been specified as serious enough by the Secretary of State to attempt to revoke his refugee status and initiate deportation action. His offence is listed in schedules 1 to 6 of the order made by the Secretary of State in relation to the specification of serious crimes. File to require further casework action in relation to s.72 rebuttal etc."
"In light of his conviction it has been decided to revoke his refugee status and serve deportation notices on him."
Consideration was then given to the factors listed in paragraph 364 of HC 395, and the memorandum concluded:
"Mr. Draga has been convicted of a serious offence and there are no known compassionate or compelling circumstances in this case. He has resided in the United Kingdom for 4 years and 9 months, but has spent his youth and formative years in Yugoslavia. His continued presence in the United Kingdom is not considered conducive to the public good.
Reasons for Deportation letter
Appeal form ….."
"On 18 May 2005 at Isleworth Crown Court, you were convicted of Possession of Drugs – with intent to supply. In view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999)."
"Although the appellant has not re-offended between his release from custody in December 2005 and his immigration detention on 2nd August 2006, we find it impossible to say that he has rebutted the presumption that his was a particularly serious crime, or that he no longer constitutes a danger to the community."
"that the Secretary of State misunderstood the extent and purpose of the statutory power when formulating the schedules to the  order, and that in making the order she exceeded the statutory power": see paragraph 82, per Stanley Burnton LJ.
It followed that the 2004 Order was ultra vires and unlawful: see paragraph 83.
"We therefore contend that the only proper course of action open to the SSHD is to revoke the deportation order and to withdraw the original deportation decision and consider the whole matter afresh. The manifest facts are: the SSHD made a decision to proceed to deport our refugee client on the only legal basis available to him, namely loss of refoulement protection; that legal basis is ultra vires and does not sustain a lawful deportation decision or order. The deportation order cannot now be sustained on a new and wholly different and untested legal assumption that our client is no longer a refugee….."
"73. The Tribunal found that it was clear that the Respondent was relying on the 2004 Order. EN (Serbia) has found that Order to be ultra vires and unlawful. The tribunal found that the original Deportation Order that depended on the lawfulness of ultra vires subordinate legislation is unlawful….
74. In light of the above finding the Tribunal find that the refusal to revoke an unlawful Deportation Order cannot be upheld. If the original decision is not in accordance with the law then the Appellant is still a refugee with ILR. The Tribunal found that the Cessation Order was made as a device by the Respondent to deport the Appellant faced with the fact that he could not rely on Section 72(4) and for no other reason. The Cessation Order was pursued in the face of an inability to exclude protection under Section 72, without realising that this inability rendered the original Deportation Order a nullity, and therefore the decision to cease the Appellant's refugee status was unlawful."
The Statutory Framework
"A person who is not a British citizen is liable to deportation from the United Kingdom if –
(a) the Secretary of State deems his deportation to be conducive to the public good…."
Without prejudice to subsection (5), subsection (6) renders persons who are not British citizens liable to deportation if they are convicted of an offence punishable by imprisonment and deportation is recommended by the court.
"(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the o order is made or while it is in force."
(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
(5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation."
"(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 9c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom is consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
"(1)…..while an appeal under section 82(1) against the decision to make the order –
(a) could be brought (ignoring any possibility of an appeal out of time with permission), or
(b) is pending."
An appeal under section 82(1) is pending until it has been finally determined, withdrawn or abandoned: see sections 79(2) and 104(1).
"(2) Where notice has been given to a person in accordance with regulations; under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
"A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the [Refugee Convention]."
"1. No contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
"(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is -
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if –
(a) he is convicted of an offence specified by order of the Secretary of State,….
(5) An order under subsection (4)-
(a) must be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
The judgment below
"62. In my judgment, the error of public law which led the Court of Appeal to declare unlawful the Order on which the deportation decisions were based, which in turn were the foundation for the detention, bears on, and is material to, the decision to detain. It was closely linked or connected to the decision to detain because without the Order the deportation decisions could not have been made and without them there could have been no detention.
63. In the circumstances set out above, I do not see myself as bound to follow Ullah or Abdi. Neither addresses precisely the issue I have to consider and the ratio of neither seems to me to preclude a decision in favour of the Claimant here. I do not, with respect, see the facts of Percy v Hall as comparable to those here and do not see how the analysis of the Court there enables me to say that the Secretary of State, as opposed to other agents of the state (about which I say nothing), can escape liability for false imprisonment if the foundation of the decision to detain is taken away by a declaration that it is ultra vires.
64. In my judgment, absent the 2004 Order, the Claimant was not simply a foreigner liable to deportation from the United Kingdom if the Secretary of State "deemed his deportation to be conducive to the public good", as Mr. Johnson argued. He was, as Mr. Lee contended, a refugee entitled to the protection of the Convention. He was a beneficiary of Rule 380 and the Secretary of State was prevented from making a deportation order if his removal would be contrary to the UK's obligations under the Convention. As the Court of Appeal's judgment in EN Serbia established, the 2004 Order was neither consistent with those obligations nor lawful in domestic law. In consequence, the notice given under s 105 of the 2002 Act was not a valid notice and the deportation order which followed was not "in force", because it had no sound legal foundation. To adapt the expression used in Ullah, the Claimant was not in fact a person liable to deportation.
65. I cannot see how the Secretary of State can properly rely on that unlawful order to resist a claim for false imprisonment. The Secretary of State does not seem to me to be in the position of some independent actor relying on the apparent lawfulness of a statutory instrument or byelaw. The 2004 Order was the Secretary of State's Order (although subject to annulment by a resolution of either House of Parliament) and it seems to me wholly wrong that she could rely on its appearance of lawfulness to justify her detention of the Claimant if the making of that Order was outside her powers.
66. Whatever may be the general rule as to the retrospective legal effects of acts declared a nullity, I am satisfied that an ultra vires Order cannot be used by the state to justify what would otherwise be false imprisonment. It follows that this claim for a declaration must succeed."
The Grounds of Appeal
(a) notice of a decision to make a deportation order had been given (paragraph 2(2) of Schedule 3); or
(b) a deportation order had been made (paragraph 2(3) of Schedule 3).
"In my judgment the fallacy in [the Claimant's] argument is that … all that is required by paragraph 2(2) of schedule 3 in order to make detention legitimate is the giving of a notice of intention to make a deportation order. The condition precedent would not be fulfilled if no such intention had been formed, or if the intention had been formed in bad faith, but otherwise once notice is given in accordance with the regulation to a person liable to be deported, that person may be detained and his detention will be lawful even if the notice is later withdrawn or set aside."
"The notice must not only be served, it must obviously also be true; and this imports a requirement that the Secretary of State has made a decision to make a deportation order against the person served with the notice. Further, the Secretary of State is authorised to order that person's detention only "pending the making of the deportation order" (that is to say, a deportation order against him), and this imports the requirement that he should be a person against whom such an order could lawfully be made.
Accordingly, [Counsel for the Secretary of State] rightly concedes that if the person served with the notice was not a person liable to deportation, or if the Secretary of State had not made a decision to make a deportation order against him, or had made such a decision in bad faith, then the notice would be bad and the detention would be unlawful. In none of those cases would there have been a decision of the kind contemplated by paragraph 2(2).
What the paragraph does not require, however, is that the decision should be the right decision, or without flaw, or otherwise impervious to successful challenge by way of judicial review. A decision made by the Secretary of State in good faith against a person liable to be deported is a decision within the contemplation of the paragraph even if it later appears that it is a decision which he should not have made or which he should not have made without further consideration."
"The notice may have been defective, but it was still a notice of intention to deport. It is not to be regarded as a nullity by reason of the errors it contained. It is clear that the Secretary of State was lawfully empowered to serve a notice of intention to deport, intended to do so and had grounds for doing so."
Mr. Draga's response
"65. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague  1 AC 58, 162C-D: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.
66. The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant's right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission  2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. 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: see Boddington v British Transport Police  2 AC 143, 158D-E.
67. Mr. Beloff submits that there are inherent problems in what I consider to be the correct and principled approach. First, it fails to take account of the nature or extent of the public law error. For example, he suggests that it treats for the purposes of liability as equally unlawful a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable) and a decision to detain for which there is no statutory authority at all……
68. I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr. Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain.
86. ….. Recognising that the court might reject the causation test, Mr. Beloff suggested a number of alternative approaches. The first is that false imprisonment should be confined to "no authority" cases: ie, cases in which there was in fact no authority to detain, without recourse to the legal "fiction" that, because of a public law error, an authority to detain which was in fact given should be treated as if it had no legal effect because it was ultra vires. The second is that detention should be vitiated only by pre-Anisminic error of law. The third is that vitiating circumstances should be restricted to bad faith and improper purpose. The fourth is that authority to detain should be vitiated only by failure to have regard to a material consideration which had an effect on the detention. The fifth is that it should be a requirement that the claimant shall have successfully applied in judicial review proceedings for the decision to detain to be quashed.
87. The first two of these suggestions seek to put the clock back to the pre-Anisminic era. For reasons given earlier, this is unwarranted. As regards the third and fourth suggestions, I have accepted at paragraphs 68 and 69 above that the detention must be vitiated by an error which is material in public law terms and have attempted to explain there what I mean by that. The fifth seeks unjustifiably to impose a procedural hurdle where none currently exists either at common law or in statute. To accede to this suggestion would be to engage in an unacceptable exercise of judicial legislation.
88. 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 in the sense that I have described, a decision to detain free from error could and would have been made."
"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…."
Lord Justice Kitchin:
Lord Justice Pill: