In a fresh development with far reaching consequences, the United Kingdom (UK) Supreme Court has most recently, most remarkably and most rightly held in a latest, landmark and extremely laudable judgment titled R (on the application of DN (Rwanda)) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 7 that was delivered on 26 February 2020 whereupon it minced no words to send across a simple, sensible and straight message that refugee can pursue claim for damages against government for illegal detention. No government can claim an unchecked and unrestricted right to hold a refugee in illegal detention! This is exactly the sum and substance of the extremely commendable judgment delivered by the UK Supreme Court which has to be applauded in no uncertain terms!

To start with, this notable judgment authored by Lord Kerr for himself and with whom Lord Wilson, Lady Black and Lord Kitchin agree first and foremost set the ball rolling by pointing out in para 1 that, “The appellant was born in Rwanda. He came to the United Kingdom in August 2000 and sought refugee status because of what he claimed was a well-founded fear of persecution if he returned to his native land. His claim was accepted on 26 October 2000 on the basis that he was a member of a particular social group (Hutu). He was recognized as a refugee pursuant to the 1951 Refugee Convention and granted indefinite leave to remain.”

While elaborating further, it is then pointed out in para 2 that, “Since he arrived in the United Kingdom DN has been convicted of a number of offences. He has also been cautioned twice. The most significant of his convictions occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non-EEA national to the United Kingdom contrary to section 25 of the Immigration Act 1971. The circumstances leading to the conviction were these: DN and his sister had travelled to the Netherlands where they met a niece. DN returned to the UK with his niece who used his sister’s travel documents in an attempt to obtain entry to this country. Although this was a serious offence, it was accepted by the trial judge that DN had no financial motivation for the crime.”

To be sure, it is then illustrated in para 3 that, “At the same court before which he had pleaded guilty to the immigration offence, however, DN was convicted, again on his plea of guilty, of three offences of obtaining or attempting to obtain a pecuniary advantage by seeking or taking employment in another’s name. He was sentenced to 12 months’ imprisonment for the Immigration Act offence and two months consecutively for each of the three pecuniary advantage offences making a total sentence of 18 months’ imprisonment.”

In hindsight, it is then unearthed in para 4 that, “On 2 July 2007 DN completed the custodial element of his sentence. On the same date the Home Secretary decided to deport him subject to a final decision on the issue of his refugee status. This was followed by a decision on 3 July that DN should be deported pursuant to article 33(2) of the Refugee Convention which allows the expulsion of refugees “whom there are reasonable grounds for regarding as a danger to the security of the country”. It was said that DN had been convicted of a “particularly serious crime” and that he “constituted a danger to the community”. The decision was based on section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. He was notified of the decision to deport him, and detained on foot of that decision on 2 July 2007, pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971, which provides that where notice has been given to a person of a decision to make a deportation order against him, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

Going forward, it is then stated in para 5 that, “Pursuant to powers conferred by section 72(4)(a) of the 2002 Act, the Home Secretary had made the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. This specified several offences which were said to be particularly serious crimes. Assisting unlawful immigration to a member state contrary to section 25 of the 1971 Act was included among them. On that basis, the appellant’s conviction for the immigration offence was deemed to warrant his deportation. Section 72(4)(a) also provided that a person convicted of an offence specified in the 2004 order was rebuttably presumed to have been guilty of a particularly serious crime and constituted a danger to the community.”

As a corollary, what follows next is stated in para 6 that, “DN appealed the Home Secretary’s decision. His appeal was heard by the Asylum and Immigration Tribunal (“AIT”) on 22 August 2007. On 29 August the tribunal dismissed the appeal. It found that the appellant constituted a danger to the community of the United Kingdom, that his attempt to circumvent the immigration law in itself amounted to a danger to the community; that he could now be expelled pursuant to article 33(2) of the Refugee Convention; and that he had failed to rebut the presumption created by the 2004 Order that a person convicted of an offence specified by the Order was deemed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom. DN sought reconsideration of the decision. On 18 September 2007 that was refused. An application for a statutory review by the High Court of the AIT’s decision under section 103A of the 2002 Act was dismissed on 7 December 2007. On 31 January 2008 the Secretary of State signed the deportation order and made an order for DN’s detention pending deportation. That order was made pursuant to paragraph 2(3) of Schedule 3 to the 1971 Act which, although subsequently amended, at the time provided that “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).” (Emphasis added).”

Importantly, it is then brought out in para 7 that, “Before the deportation order was signed, no suggestion had been made on DN’s behalf that the 2004 Order was unlawful. After it was made, however, solicitors, who had replaced those who originally acted for DN, wrote to the Secretary of State making that precise case. On that account the Secretary of State was invited to revoke the deportation order. It was also claimed that DN’s detention since 2 July 2007 was unlawful. On 29 February 2008 the appellant was released on bail by order of an immigration judge. By that time, he had spent 242 days in immigration detention.”

No doubt, the simple and straightforward questions that need to be asked here are: How can the illegal detention of DN be justified under any circumstances? How can the 242 days that DN spent in immigration detention be glossed over? How can the claim for damages of DN be overlooked?

More importantly, we need to pay heed to what is stated in para 20 that, “The need for finality in litigation likewise does not warrant displacement of the Lumba principle. As Lord Carnwath says (para 38 of his judgment), finality and legal certainty are desirable objectives. But they cannot extinguish a clear legal right. In this case DN was detained on foot of an intended, and then actual, deportation order which proved to be unlawful. His detention was uniquely linked to that deportation order. The unlawfulness of that detention is inescapable. The desiderata of finality and certainty cannot impinge on that inevitable result.”

Equally important if not more is what is then stated in para 25 that, “If, and inasmuch as, Ullah suggests that paragraph 2(2) of Schedule 3 provides a stand-alone authority for lawful detention, no matter what has gone before, and irrespective of the fact that the decision to deport lacks a legal basis, I consider that the decision was wrong and should now be recognised as such. The giving of notice of the decision to make a deportation order, the making of the deportation order, and the detention on foot of it are essential steps in the same transaction. The detention depends for its legality on the lawfulness of the deportation itself. Absent a lawful basis for the making of a deportation order, it is not possible to breathe legal life into the decision to detain.”

Most importantly, it is then very rightly held in para 26 that, “I would allow the appeal and confirm that the appellant is entitled to pursue a claim for damages for false imprisonment. The prospects of success in that claim are not, of course, a matter for this court, particularly because lines of possible defence to the claimant’s case, not pursued (or, at least, not pursued with any vigour), might be canvassed on the hearing of the claim.”

All told, it is a no-brainer that all the courts in all the countries must always pay heed to what has been held by the UK Supreme Court in this extremely landmark case and hold the concerned Government accountable for false imprisonment of a refugee and for violating his/her human rights with impunity! Of course, it is a cardinal principle of law that even refugees have human rights which are sacrosanct and must always be accorded the highest esteem! If any Government fails to do so then they also must be ready to pay compensation for human rights violations as we see in this DN case of UK!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.