ON APPEAL FROM
HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMOREand
LORD JUSTICE LEWISON
| DN (Rwanda)
|- and -
|The Secretary of State for the Home Department
Julie Anderson (instructed by The Government Legal Department) for the Respondent
Hearing dates : 18 January 2018
Crown Copyright ©
LADY JUSTICE ARDEN :
1. ISSUE FOR DETERMINATION AND SUMMARY OF CONCLUSION
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).
2. R (LUMBA) V SECRETARY OF STATE FOR THE HOME DEPARTMENT
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.
3. THIS COURT'S REASONING IN DRAGA
59. If the Tribunal allows an appeal under section 82(1) against a decision to make a deportation order because it concludes that the decision is "not in accordance with the law", does it follow, applying the approach in Lumba, that the detention under paragraph 2(2) of Schedule 3 of the person served with notice of the decision was unlawful? In answer to a question from Kitchin LJ, Mr. Gill initially submitted that a finding by the Tribunal that the decision to make the deportation order was unlawful on any of the grounds set out in section 84(1) would render the appellant's detention unlawful. On further consideration (realising, no doubt, the grave practical difficulties that would result from such an approach) he modified his answer to the question, and submitted that while there would be some cases in which the error of law in making the decision to deport would mean that the decision would be a "nullity", with the result that the appellant's detention would be unlawful, in most cases, eg those where the Tribunal merely considered that a discretion should have been exercised in a different manner, a decision to allow an appeal under section 82(1) would not mean that the appellant's detention under paragraph 2(2) of Schedule 3 was unlawful.
60. In the great majority of cases, the mere fact that an appeal has been allowed under section 82(1) will not mean that the decision to make the deportation order was unlawful in a way which was relevant to the decision to detain. An appeal may be allowed because, eg the Tribunal takes a different view as to the proportionality of an interference with an appellant's rights under article 8 of the ECHR, or because, with the benefit of further evidence, the Tribunal reaches a different conclusion as to the risk of persecution on removal, the application of a particular immigration rule, or the manner in which a discretion should have been exercised under the rules. There will, however, be some cases where appeals are allowed by the Tribunal on the basis that there was a breach of a rule of public law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the detention unlawful. Examples of such breaches are mentioned in Ullah: where the Tribunal concludes that the appellant was not a person liable to deportation, or the decision to make a deportation order was made in bad faith (see paragraphs 44 and 45 above). 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…."
61. The statutory scheme does not provide any mechanism for challenging the lawfulness of the kind of decision that was in issue in Lumba: an (unlawful) decision to detain where there had been a (lawful) decision to make a deportation order/the making of a (lawful) deportation order. The lawfulness of such a decision can be challenged only by way of judicial review. In sharp contrast, Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order. The Secretary of State may not make the order until an appeal against the decision to make it has been "finally determined" (see paragraph 33 above). In order to give effect to the statutory scheme there is a very strong case for treating the Tribunal's decision on an appeal under section 82(1) as determinative (subject to any appeal to the Court of Appeal) of the issues as between the parties to the appeal in order to ensure finality in litigation and legal certainty.
62. The law, particularly in this field, is constantly evolving, as shown by the number of reported cases. The fact that a decision by the Court of Appeal or the Supreme Court in a later case, perhaps many years later, may, with the benefit of hindsight, make it clear that a Tribunal's decision in an earlier case to allow or dismiss an appeal against a decision to make a deportation order was made on an erroneous legal basis is not a ground for re-opening the earlier decision by the Tribunal. It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the Tribunal's decision, dismissing an appeal, once time for applying for permission to appeal against the decision had expired, as a lawful basis for making a deportation order.
If the Secretary of State is unable to rely upon a Tribunal's decision in a case where the Court of Appeal has refused an application for permission to appeal out of time against that decision, it is difficult to see how there could ever be any firm basis for a decision to detain under paragraph 2(2) or (3) of Schedule 3.
83. In my judgment, the case is distinguishable from R v Governor of HMP Brockhill ex parte Evans (No.2)  2 AC 19. In seeking unsuccessfully to justify detention in that case, reliance was placed by the prison governor on Home Office guidance based on views expressed by the Divisional Court subsequently held to be erroneous. That is distinguishable from a deportation order based on the apparently lawful 2004 Order, lawfully made and also, in this case, upheld by the decision of the Tribunal promulgated on 15 February 2007. Lord Hope, at page 35A to C in Evans, distinguished the case from one where the governor was acting
"within the four corners of an order which had been made by the court."
The prison governor in R v Governor of Brockhill Prison, Ex p Evans (No 2)  2 AC 19 had no power to detain the prisoner beyond the properly calculated term of her imprisonment: the fact that he was acting in compliance with the law as it had previously been thought to be was neither here nor there.
4. THE DOCTRINE OF PRECEDENT
(1). The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2.) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3.) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.(per Lord Greene MR at 729-730)
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene M.R., of the rarest occurrence.
42 While adherence to precedent has been derided by some, at any rate since the time of Bentham, as a recipe for the perpetuation of error, it has been a cornerstone of our legal system. Even when, in 1966, the House modified, in relation to its own practice, the rule laid down in London Street Tramways Co Ltd v London County Council  AC 375, it described the use of precedent as:
"an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules." Practice Statement (Judicial Precedent)  1 WLR 1234.
The House made plain that this modification was not intended to affect the use of precedent elsewhere than in the House, and the infrequency with which the House has exercised its freedom to depart from its own decisions testifies to the importance its attaches to the principle. The strictures of Lord Hailsham of St Marylebone LC in Broome v Cassell & Co Ltd  AC 1027, 1053-1055, are too well known to call for repetition. They remain highly pertinent.
in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd.  KB 718 offers guidance to each tier in matters affecting its own decisions.
LORD JUSTICE LONGMORE
LORD JUSTICE LEWISON