Laura Dubinsky acts for intervener in landmark appeal allowed by Supreme Court
Laura Dubinsky of Doughty Street Chambers, instructed by Allen and Overy LLP, was junior counsel for the Intervener, Bail for Immigration Detainees in this landmark appeal, allowed today by the Supreme Court. The Appellant, DN, was a Rwandan refugee and former offender who was the subject of a deportation order made pursuant to delegated legislation which deemed certain offences to be particularly serious and those who had committed them to constitute a threat to the community. Consequent on the deportation order, DN was detained. However, the delegated legislation, as it subsequently transpired, had been ultra vires.
The Intervener and Appellant submitted, and the Supreme Court accepted, that where a deportation order is unlawfully made, then, because the deportation order bears upon the decision to detain (indeed detention depends upon the decision then the order to deport), the detention authority is itself vitiated by material public law error. That is so even if (as occurred in DN’s case) the deportation order was, before the detention, (erroneously) upheld on appeal by the Tribunal. DN was unlawfully detained.
This case is important confirmation that a decision based upon a prior unlawful decision is itself also unlawful. The Supreme Court rejected an attempt by the Secretary of State for the Home Department to narrow the application of the Lumba and Mighty principle (ie that a decision to detain flawed by material public law error cannot lawfully authorise detention). This case is of particular importance to immigration detainees, whose administrative detention is often based upon prior immigration decisions. This judgment confirms that R (Draga) v Secretary of State for the Home Department  EWCA Civ 842 is wrongly decided.