Secretary of State for the Home Department v Draga

Factual and Procedural Background

This opinion concerns an appeal by the Secretary of State against a High Court order granting the Plaintiff a declaration that he was unlawfully detained by the Secretary of State during two periods: from 2nd August 2006 to 27th March 2007, and from 30th November 2007 to 30th September 2010.

The Plaintiff, a national of a foreign country, arrived in the UK as an unaccompanied minor in 2001 and was granted refugee status with indefinite leave to remain. In 2005, he was convicted of multiple offences including possession of a controlled drug with intent to supply, for which he received an 18-month detention sentence. Following release on licence, he was arrested again and breached bail conditions, prompting consideration of deportation by the Secretary of State.

The Secretary of State’s decision-making process involved internal memoranda and notes, initially concluding deportation was not appropriate, but later pursuing deportation based on a statutory instrument—the 2004 Order—specifying certain offences as particularly serious crimes, including the Plaintiff's drug offence. The Plaintiff was served with a deportation notice in August 2006 and detained accordingly.

The Plaintiff appealed the deportation decision, which was dismissed by the Asylum and Immigration Tribunal in February 2007. After a reconsideration and further appeals process, the deportation order was made in November 2007, and the Plaintiff was re-detained. He filed an out-of-time application for permission to appeal to the Court of Appeal, which was refused.

Subsequently, judicial review proceedings were initiated challenging the legality of the 2004 Order, which the Court of Appeal found to be ultra vires and unlawful. The Plaintiff's solicitors requested revocation of the deportation order on this basis, but the Secretary of State refused. The First-tier Tribunal later allowed the Plaintiff’s appeal against the refusal to revoke, finding the deportation order unlawful as it relied on the ultra vires 2004 Order. The Plaintiff was released on bail thereafter.

Legal Issues Presented

1. Whether the Plaintiff’s detention was lawful given that the deportation order on which it was based relied on an ultra vires statutory instrument (the 2004 Order).
2. Whether a flaw in the decision to make a deportation order invalidates the lawfulness of detention under the relevant statutory provisions.
3. The extent to which the Secretary of State may rely on a tribunal’s final determination dismissing an appeal against a deportation decision as lawful authority for detention.
4. The impact of subsequent findings that the statutory basis for deportation was unlawful on the lawfulness of detention and the obligation to revoke the deportation order.

Arguments of the Parties

Appellant's Arguments (Secretary of State)

• The decisions to deem the Plaintiff liable to deportation and to make a deportation order are distinct from the decision to detain; a flaw in the former does not invalidate the latter.
• The lawfulness of detention depends solely on whether notice of intention to make a deportation order has been given or a deportation order has been made, as prescribed by Schedule 3 of the Immigration Act 1971.
• The Secretary of State had the power to decide the Plaintiff was liable to deportation independently of the 2004 Order, as the Plaintiff was a serious criminal.
• The statutory appeal process under the Nationality, Immigration and Asylum Act 2002 provides a mechanism to challenge deportation decisions; until finally determined, the Secretary of State cannot make a deportation order.
• Once the Plaintiff’s appeal was finally dismissed, the Secretary of State was entitled to rely on that determination as lawful authority for detention and deportation.
• Following the Court of Appeal’s ruling that the 2004 Order was ultra vires, the Secretary of State was entitled to refuse revocation of the deportation order on alternative grounds, including cessation of refugee status.

Appellee's Arguments (Plaintiff)

• The sole reason for the Secretary of State’s decision to deem deportation conducive to the public good and to make the deportation order was reliance on the 2004 Order, which was ultra vires and unlawful.
• Because the 2004 Order was unlawful, both the deeming decision and the deportation order were unlawful, and therefore the detention based on those decisions was unlawful.
• The Secretary of State did not independently assess the seriousness of the offence or danger to the community outside the 2004 Order framework.
• The condition precedent for lawful detention under Schedule 3 was not met because the Plaintiff was not liable to deportation when the notice was served.
• Legal precedents such as Lumba establish that any public law error material to the detention decision renders detention unlawful and the Secretary of State cannot rely on a hypothetical lawful decision to justify detention.
• The Secretary of State’s reliance on a "device" (the cessation of refugee status) to maintain deportation after the 2004 Order was declared unlawful renders continued detention unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first acknowledged that the decisions under sections 3(5)(a) and 5(1) of the Immigration Act 1971 are distinct from the decision to detain under Schedule 3. While the Secretary of State could deem a person liable to deportation and decide to make a deportation order independently of the detention decision, in this case the evidence showed the decisions to deem deportation conducive to the public good and to make the deportation order were taken simultaneously by the same official relying solely on the 2004 Order.

The 2004 Order, a statutory instrument specifying certain offences as particularly serious crimes for deportation purposes, was found to be ultra vires and unlawful by the Court of Appeal in EN (Serbia). Because the Secretary of State’s deportation decisions were based solely on this unlawful Order, those decisions were unlawful.

The court considered precedent, particularly the Supreme Court’s decision in Lumba, which held that any public law error material to the detention decision renders detention unlawful and that the Secretary of State cannot justify detention by asserting that a lawful decision would have been made in the absence of the error.

However, the statutory scheme provides a mechanism for appealing deportation decisions under the Nationality, Immigration and Asylum Act 2002. Until such appeals are finally determined, the Secretary of State cannot make a deportation order. Once the appeal is finally dismissed, the Secretary of State is entitled to rely on that determination as lawful authority for detention.

Applying this, the court held that the Plaintiff’s detention was lawful until the appeal was finally determined in October 2007, and the deportation order was made in reliance on that determination. The subsequent finding that the 2004 Order was unlawful did not invalidate the final tribunal decision dismissing the appeal, which must be treated as determinative to ensure legal certainty and finality.

After the Court of Appeal’s ruling on the unlawfulness of the 2004 Order, the Secretary of State refused to revoke the deportation order, relying on a cessation of refugee status ("the device"). The Tribunal found this approach unlawful, rendering detention unlawful from the point when reliance on the device crystallised. The court inferred that the Secretary of State had a reasonable period (until 1 January 2010) to consider revocation, after which continued detention was unlawful.

Holding and Implications

The court ALLOWED IN PART the Secretary of State’s appeal. It held that the Plaintiff’s detention was lawful from 2nd August 2006 until 27th March 2007, and lawful again from 30th November 2007 until the Secretary of State’s reliance on an unlawful "device" to maintain the deportation order crystallised. The court granted a declaration that the Plaintiff was unlawfully detained from 1st January 2010 to 30th September 2010.

The direct effect of this decision is to recognize the unlawfulness of the Plaintiff’s detention during the specified later period, requiring appropriate remedies. The court emphasized the importance of the statutory appeal process in providing legal certainty and finality for deportation decisions and detention authority. No new precedent was established beyond applying existing principles to the facts of this case.