The appellant, DN, is a Rwandan national who was granted refugee status in the UK pursuant to the 1951 Refugee Convention. DN was subsequently convicted of a number of offences, the most serious of which occurred when he pleaded guilty to assisting unlawful entry of a non-EEA national in the UK. The Secretary of State for the Home Department used the powers under the Nationality, Immigration and Asylum Act 2002 to order the deportation of DN. DN’s attempt to assist unlawful immigration to a member state country was a serious offence by way of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. The Secretary of State ordered DN’s deportation and detention pending deportation.
DN sought judicial review of the deportation order. Following a stay and the decision in EN (Serbia) v Secretary of State for the Home Department  EWCA Civ 630, which determined that the 2004 Order was unlawful, DN amended his judicial review proceedings to concentrate on the lawfulness of the detention. Following a further stay and the decision in R (Draga) v Secretary of State for the Home Department  EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed DN’s substantive appeal.
The Supreme Court unanimously allowed the appeal and confirmed that DN was entitled to pursue a claim for damages for false imprisonment. The Court relied on Lord Dyson’s judgment in Lumba that here is no difference between a detention that is unlawful because there was no statutory power to detain and a detention that is unlawful because the decision to detain was made in breach of a rule of public law. As in Lumba, there was no statutory power to detain DN. The 2004 Order upon which the decision to deport was based was ruled unlawful in EN (Serbia). As detention was for the express purpose of facilitating deportation, without a lawful deportation order the occasion for detention simply did not arise.
Raza Husain QC and Eleanor Mitchell were involved in this case.