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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Draga [2012] EWCA Civ 842 (21 June 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/842.html Cite as: [2012] EWCA Civ 842

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR NEIL GARNHAM QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
CO/6024/2008

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2012

Lord Justice Sullivan:

Introduction

1. This is the Secretary of State's appeal against the order dated 15^th July 2011 of Mr. Neil Garnham QC sitting as a Deputy Judge of the High Court granting the Claimant, Arben Draga, a declaration that he was unlawfully detained by the Secretary of State between 2^nd August 2006 and 27^th March 2007, and between 30^th November 2007 and 30^th September 2010.

The facts

2. The facts are set out in some detail in paragraphs 3-19 of the judgment below [2011] EWHC 1825 (Admin). Additional documents were produced by the Secretary of State during the course of the Appeal: see paragraph 7 below.
3. Mr. Draga is a Kosovan national who arrived in the UK as an unaccompanied minor in 2001. He claimed asylum on the ground that he feared persecution on account of his Gorani ethnic origin if he was returned to Kosovo. He was recognised as a refugee and granted indefinite leave to remain on 6^th December 2001.
4. In 2005 he was convicted of a number of offences: criminal damage, possession of heroin with intent to supply, and possession of a knife in a public place. In respect of the second of those offences he was sentenced to 18 months detention in a Young Offender Institution. The sentencing judge did not recommend deportation.
5. Mr. Draga was released on licence on 15^th December 2005. While on licence he was arrested for possession of an imitation firearm, was released on bail subject to reporting conditions, and breached those conditions by failing to report on 22^nd May 2006.
6. Consideration was then given by the Secretary of State to whether Mr. Draga should be deported. It is an unsatisfactory feature of this case that there is no witness statement on behalf of the Secretary of State which deals with the decision making process within the Home Office. The Judge had to draw inferences as to the process – what matters were, or were not, considered, when and by whom – from the documents disclosed by the Home Office.
7. The key documents before the Judge were a memorandum from the Secretary of State's "CCT Crash Team" dated 26^th June 2006, and a handwritten note dated 29^th June 2006: see paragraphs 8 and 9 of the judgment. During the course of the appeal we gave Mr. Johnson QC permission to produce the additional documents referred to in paragraphs 8, 9, and 12 below.
8. Deportation was first considered by the CCT in a minute dated 7^th May 2006. Having summarised the history and considered the factors listed in paragraph 364 of HC 395, the author of the minute said:

"Having taken all the above into consideration I am of the opinion that deportation would not be appropriate in this case. Please advice (sic) on the way forward."

9. That is followed by a handwritten note dated 14^th May 2006:

"…having read the previous minute I am of the opinion that this should go to a SCW [Senior Case Worker] at CCT to confirm a DO [Deportation Order] is not being pursued."

10. The memorandum dated 26^th June 2006 is, presumably, the presentation of the case to the Senior Case Worker:

"Subject was granted asylum/ILR on 5/12/01. As a Gorani it was accepted that he had a well-founded fear of persecution. Subject came to CCT notice following his conviction on 18/5/05 for possession of drugs with intent, he was sentenced to 18 months detention in a YOI, not recommended [for deportation]….the subject was fined in April 2005 for criminal damage and sentenced to 3 months YOI for having a blade in a public place in June 2005. The subject, a person with refugee status has been sentenced for less than 2 [years] as such we would not pursue deportation action."

11. Beneath the typed memorandum someone, presumably the Senior Case Worker, added a manuscript note. The note is dated 29^th June 2006, and states:

"Even though this subject has been sentenced to less than two years, this case should be pursued under s.72(4) of the 2002 NIA Act. His offence (possession of class A with intent to supply) has been specified as serious enough by the Secretary of State to attempt to revoke his refugee status and initiate deportation action. His offence is listed in schedules 1 to 6 of the order made by the Secretary of State in relation to the specification of serious crimes. File to require further casework action in relation to s.72 rebuttal etc."

12. The case was pursued in a memorandum dated 28^th July 2006 from the "Taskforce Team". The "Summary" in this memorandum referred to Mr. Draga's conviction for possession of drugs with intent to supply and said:

"In light of his conviction it has been decided to revoke his refugee status and serve deportation notices on him."

Consideration was then given to the factors listed in paragraph 364 of HC 395, and the memorandum concluded:

"Mr. Draga has been convicted of a serious offence and there are no known compassionate or compelling circumstances in this case. He has resided in the United Kingdom for 4 years and 9 months, but has spent his youth and formative years in Yugoslavia. His continued presence in the United Kingdom is not considered conducive to the public good.

Therefore

ICD 1070

Reasons for Deportation letter

Appeal form ….."

13. On the 2^nd August 2006 Mr. Draga was served with notice of a decision to make a deportation order against him (Form ICD 1070). The notice said that:

"On 18 May 2005 at Isleworth Crown Court, you were convicted of Possession of Drugs – with intent to supply. In view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999)."

14. The notice informed Mr. Draga of his right to appeal against the decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), enclosed a notice of appeal, and set out the grounds on which he could appeal. Those grounds included the ground that his removal from the UK as a result of the decision would breach the UK's obligations under the 1951 Refugee Convention, and the ground "that the decision is otherwise not in accordance with the law."
15. Mr. Draga was detained on 2^nd August 2006. For completeness, it should be noted that the notice dated 2^nd August 2006 said that Mr. Draga would be removed to Somalia. That was plainly an error, and it was corrected in a new Notice served on 22^nd January 2007, which substituted Serbia for Somalia as the country to which Mr. Draga would be removed. Neither party suggested that anything turned on this error.
16. On 18^th September 2006 Mr. Draga appealed against the decision to make a deportation order against him. In a determination promulgated on 15^th February 2007 the Asylum and Immigration Tribunal dismissed his appeal. The Tribunal noted that the letter from the Home Office giving the Secretary of State's reasons for the decision to make a deportation order had erroneously referred to section 72(2) of the 2002 Act. The Home Office Presenting Officer confirmed that no reliance was placed on section 72(2) of the 2002 Act, but did rely on section 74(4) of the Act: see paragraph 9 of the Tribunal's determination.
17. It was conceded on behalf of Mr. Draga, who was represented by Counsel (not Mr. Gill QC or Mr. Lee) before the Tribunal, that the offence of which he had been convicted was one specified by order of the Secretary of State. The Tribunal stated that the consequence of this was that subsections 72(6), (9) and (10) of the Act came into play. In paragraph 20 the Tribunal concluded that:

"Although the appellant has not re-offended between his release from custody in December 2005 and his immigration detention on 2^nd August 2006, we find it impossible to say that he has rebutted the presumption that his was a particularly serious crime, or that he no longer constitutes a danger to the community."

18. Mr. Draga applied for reconsideration of the Tribunal's decision. He was granted bail on 29^th March 2007. Reconsideration of the Tribunal's determination was ordered on 31^st May 2007. We do not have the grounds for reconsideration, but the Court of Appeal subsequently said that he had packaged an error of fact as an error of law: see [2008] EWCA Civ 319, paragraph 4. In a determination promulgated on 10^th October 2007 the appeal was dismissed on reconsideration. The time for applying to the Court of Appeal for permission to appeal against this decision expired on 26^th October 2007, ibid, paragraph 5. On 6^th November 2007 the Secretary of State signed a deportation order against Mr. Draga. He was served with the order and re-detained on 30^th November 2007.
19. On 18^th February 2008 Mr. Draga filed an out-of-time application for permission to appeal to the Court of Appeal. At that stage, the sole ground of appeal was that the Secretary of State should have considered deportation under Article 32 of the Refugee Convention, not Article 33(2).
20. On 17^th March 2008 there was an oral hearing before Tuckey and Thomas LJJ of Mr. Draga's application for permission to appeal out-of-time: [2008] EWCA Civ 319. Amended grounds of appeal and a skeleton argument were filed on 12^th March 2008 in which, for the first time, it was contended that the decision to make a deportation order was invalid because it was based upon section 72(4) of the 2002 Act and The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 ("the 2004 Order") made thereunder, and those enactments were incompatible with both the Refugee Convention and Council Directive 2004/83/EC of 29^th April 2004 ("the Qualification Directive"): see paragraph 6 of the judgment of Tuckey LJ.
21. The Court of Appeal refused the application for an extension of time. Tuckey LJ acknowledged that the new point was one which had interested commentators for some time, but said that if it was to be raised on behalf of Mr. Draga "it should have been raised very long ago", and considered that it would, in any event, be of no avail to Mr. Draga on the facts: see paragraph 8 of the judgment of Tuckey LJ.
22. Mr. Draga's representatives made further representations on 20^th March 2008. They asked for their submissions to be treated as a fresh human rights claim under articles 2 and 3 of the European Convention on Human Rights ("ECHR"), and contended that the 2004 Order on which the deportation was founded was ultra vires. The submissions were treated by the Secretary of State as an application for revocation of the deportation order. This was refused on 13^th June 2008, and removal directions were set for Kosovo on 26^th June 2008.
23. On 24^th June 2008 these judicial review proceedings were lodged. An order preventing removal was granted, and the proceedings were stayed behind the case of EN (Serbia) v Secretary of State for the Home Department. Judgment in that case was handed down on 26th June 2009: [2009] EWCA Civ 630. The Court of Appeal concluded:

"that the Secretary of State misunderstood the extent and purpose of the statutory power when formulating the schedules to the [2004] order, and that in making the order she exceeded the statutory power": see paragraph 82, per Stanley Burnton LJ.

It followed that the 2004 Order was ultra vires and unlawful: see paragraph 83.

24. In a letter dated 9^th October 2009 to Mr. Draga's present representatives, Sutovic and Hartigan, UKBA said that "Due to the retrospective effect of [EN (Serbia)] the Secretary of State has had your client's case reviewed." The letter said that the Secretary of State was considering ceasing Mr. Draga's refugee status under Article 1C (5) of the Refugee Convention.
25. In their reply dated 29^th October 2009 to the Treasury Solicitor, Sutovic and Hartigan contended that the original decision to make the deportation order and the deportation order itself were unlawful because they were "wholly reliant" upon the presumptions made by reference to the unlawful 2004 order. They contended that:

"We therefore contend that the only proper course of action open to the SSHD is to revoke the deportation order and to withdraw the original deportation decision and consider the whole matter afresh. The manifest facts are: the SSHD made a decision to proceed to deport our refugee client on the only legal basis available to him, namely loss of refoulement protection; that legal basis is ultra vires and does not sustain a lawful deportation decision or order. The deportation order cannot now be sustained on a new and wholly different and untested legal assumption that our client is no longer a refugee….."

26. The Secretary of State refused to revoke the deportation order. In a letter dated 18^th February 2010 UKBA said that the Secretary of State had concluded that the deportation order should remain in force due to Mr. Draga's serious conviction for possessing a Class A controlled drug with intent to supply, and because he fell within the terms of Article 1C (5) of the Refugee Convention due to the current situation in Kosovo.
27. Mr. Draga appealed against the refusal to revoke the deportation order. In a determination promulgated on 8^th September 2010 the First-tier Tribunal (Immigration and Asylum Chamber) allowed his appeal. In paragraphs 72 and 73 of its determination the Tribunal concluded:

"73. The Tribunal found that it was clear that the Respondent was relying on the 2004 Order. EN (Serbia) has found that Order to be ultra vires and unlawful. The tribunal found that the original Deportation Order that depended on the lawfulness of ultra vires subordinate legislation is unlawful….

74. In light of the above finding the Tribunal find that the refusal to revoke an unlawful Deportation Order cannot be upheld. If the original decision is not in accordance with the law then the Appellant is still a refugee with ILR. The Tribunal found that the Cessation Order was made as a device by the Respondent to deport the Appellant faced with the fact that he could not rely on Section 72(4) and for no other reason. The Cessation Order was pursued in the face of an inability to exclude protection under Section 72, without realising that this inability rendered the original Deportation Order a nullity, and therefore the decision to cease the Appellant's refugee status was unlawful."

28. On 17^th September 2010 the Secretary of State sought permission to appeal against the Tribunal's determination. On 30^th September 2010 the First-tier Tribunal refused the application for permission to appeal and granted bail to Mr. Draga.

The Statutory Framework

29. Section 3(5) of the Immigration Act 1971 ("the 1971 Act") provides that:

"A person who is not a British citizen is liable to deportation from the United Kingdom if –

(a) the Secretary of State deems his deportation to be conducive to the public good…."

Without prejudice to subsection (5), subsection (6) renders persons who are not British citizens liable to deportation if they are convicted of an offence punishable by imprisonment and deportation is recommended by the court.

30. Section 5 of the 1971 Act prescribes the procedure for deportation. The relevant provisions are as follows:

"(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the o order is made or while it is in force."

(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.

(5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation."

31. A decision to make a deportation order under section 5(1) of the 1971 Act is an "immigration decision" against which there is a right of appeal under section 82 of the 2002 Act: see section 82(1)(j). So also is a refusal to revoke a deportation order under section 5(2) of the 1971 Act: see section 82(1)(k). The grounds of appeal are set out in section 84(1):

"(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997;

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 9c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the United Kingdom is consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."

32. The Secretary of State has made regulations under section 105 of the 2002 Act requiring written notice to be given of immigration decisions which are appealable: see The Immigration (Notices) Regulations 2003. The notice must include or be accompanied by a statement of reasons for the decision, and must inform the person served with the notice of his right of appeal against the notice and the grounds on which he may appeal.
33. Section 79 of the 2002 Act prohibits the making of a deportation order against a person who has been served with notice of a decision to make an order

"(1)…..while an appeal under section 82(1) against the decision to make the order –

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending."

An appeal under section 82(1) is pending until it has been finally determined, withdrawn or abandoned: see sections 79(2) and 104(1).

34. The power to detain at the two stages of the decision making process – once notice of a decision to deport has been given, and once a deportation order has been made – is conferred by paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act:

"(2) Where notice has been given to a person in accordance with regulations; under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) 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)."

35. Mr. Draga is not a British Citizen, but he was in 2006, and still is, a refugee. Rule 380 of the Immigration Rules states that:

"A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the [Refugee Convention]."

36. Article 33 of the Refugee Convention prohibits refoulement:

"1. No contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

37. Section 72 of the 2002 Act provides as follows:

"(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).

(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is -

(a) convicted in the United Kingdom of an offence, and

(b) sentenced to a period of imprisonment of at least two years.

(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if –

(a) he is convicted of an offence specified by order of the Secretary of State,….

(5) An order under subsection (4)-

(a) must be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

38. One of the offences specified in Schedule 1 to the 2004 Order, purportedly made by the Secretary of State under section 72(4) of the 2002 Act, was possession of a controlled drug (class A or class B) with intent to supply.

The judgment below

39. Having considered the relevant authorities, including EN (Serbia), Ullah v Home Office [1995] Imm AR 166, D v Home Office [2005] EWCA Civ 38, [2006] I WLR 1003, Abdi v Secretary of State for the Home Department [2009] EWHC 1324 (Admin), Percy v Hall [1997] I QB 924, and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] I AC 245, the Judge concluded in paragraphs 62-66 of his judgment:

"62. In my judgment, the error of public law which led the Court of Appeal to declare unlawful the Order on which the deportation decisions were based, which in turn were the foundation for the detention, bears on, and is material to, the decision to detain. It was closely linked or connected to the decision to detain because without the Order the deportation decisions could not have been made and without them there could have been no detention.

63. In the circumstances set out above, I do not see myself as bound to follow Ullah or Abdi. Neither addresses precisely the issue I have to consider and the ratio of neither seems to me to preclude a decision in favour of the Claimant here. I do not, with respect, see the facts of Percy v Hall as comparable to those here and do not see how the analysis of the Court there enables me to say that the Secretary of State, as opposed to other agents of the state (about which I say nothing), can escape liability for false imprisonment if the foundation of the decision to detain is taken away by a declaration that it is ultra vires.

64. In my judgment, absent the 2004 Order, the Claimant was not simply a foreigner liable to deportation from the United Kingdom if the Secretary of State "deemed his deportation to be conducive to the public good", as Mr. Johnson argued. He was, as Mr. Lee contended, a refugee entitled to the protection of the Convention. He was a beneficiary of Rule 380 and the Secretary of State was prevented from making a deportation order if his removal would be contrary to the UK's obligations under the Convention. As the Court of Appeal's judgment in EN Serbia established, the 2004 Order was neither consistent with those obligations nor lawful in domestic law. In consequence, the notice given under s 105 of the 2002 Act was not a valid notice and the deportation order which followed was not "in force", because it had no sound legal foundation. To adapt the expression used in Ullah, the Claimant was not in fact a person liable to deportation.

65. I cannot see how the Secretary of State can properly rely on that unlawful order to resist a claim for false imprisonment. The Secretary of State does not seem to me to be in the position of some independent actor relying on the apparent lawfulness of a statutory instrument or byelaw. The 2004 Order was the Secretary of State's Order (although subject to annulment by a resolution of either House of Parliament) and it seems to me wholly wrong that she could rely on its appearance of lawfulness to justify her detention of the Claimant if the making of that Order was outside her powers.

66. Whatever may be the general rule as to the retrospective legal effects of acts declared a nullity, I am satisfied that an ultra vires Order cannot be used by the state to justify what would otherwise be false imprisonment. It follows that this claim for a declaration must succeed."

40. The Judge rejected a further challenge to Mr. Draga's detention on Hardial Singh grounds. There is no cross-appeal against this aspect of his decision.

The Grounds of Appeal

41. At the heart of the Grounds of Appeal was the submission that a clear distinction had to be drawn between the decision to make a deportation order and the making of the order on the one hand, and the decision to detain on the other. A flaw in the decision to make a deportation order/the making of the order did not invalidate the decision to detain. The lawfulness of a decision to detain was solely dependant upon the fact that either:

(a) notice of a decision to make a deportation order had been given (paragraph 2(2) of Schedule 3); or

(b) a deportation order had been made (paragraph 2(3) of Schedule 3).

42. Mr. Johnson submitted that there had been no challenge to the lawfulness of the Secretary of State's decision under section 3(5)(a) of the 1971 Act that Mr. Draga was a person who was liable to deportation because he was not a British Citizen and the Secretary of State had deemed his deportation to be conducive to the public good. The initial "deeming" decision did not depend on the 2004 Order. It was "perfectly possible for the Secretary of State to decide that a person is a serious criminal without relying on the presumption."
43. Because Mr. Draga was a person who was liable to deportation under section 3(5), the Secretary of State was entitled to serve him with notice of a decision to make a deportation order under section 5(1) of the Act. Once such a notice had been given, the Secretary of State had power under paragraph 2(2) of Schedule 3 to the 1971 Act to detain Mr. Draga between 2^nd August 2006 and 29^th March 2007, pending the making of a deportation order.
44. In support of his submission that a flaw in the decision making process leading up to the giving of a notice to make a deportation order did not impact upon the lawfulness of the decision to detain under paragraph 2(2) of Schedule 3, Mr. Johnson referred to the decision of this Court in Ullah. After notice of a decision to deport had been given on 29^th September 1992 the Appellant was detained. On 16^th October 1992 the notice was withdrawn because there had been a failure to take all relevant facts into consideration, and the Appellant was released. The Court rejected the Appellant's claim for damages for false imprisonment for the period from 29^th September – 16^th October 1992. In response to the Appellant's submission that the decision to deport was "not in accordance with the law" and "not valid", Kennedy LJ said:

"In my judgment the fallacy in [the Claimant's] argument is that … all that is required by paragraph 2(2) of schedule 3 in order to make detention legitimate is the giving of a notice of intention to make a deportation order. The condition precedent would not be fulfilled if no such intention had been formed, or if the intention had been formed in bad faith, but otherwise once notice is given in accordance with the regulation to a person liable to be deported, that person may be detained and his detention will be lawful even if the notice is later withdrawn or set aside."

45. Millett LJ accepted that, in addition to the express condition precedent that a notice in the proper form must have been served on the person to be detained, other conditions were implicit in the langage of paragraph 2(2):

"The notice must not only be served, it must obviously also be true; and this imports a requirement that the Secretary of State has made a decision to make a deportation order against the person served with the notice. Further, the Secretary of State is authorised to order that person's detention only "pending the making of the deportation order" (that is to say, a deportation order against him), and this imports the requirement that he should be a person against whom such an order could lawfully be made.

Accordingly, [Counsel for the Secretary of State] rightly concedes that if the person served with the notice was not a person liable to deportation, or if the Secretary of State had not made a decision to make a deportation order against him, or had made such a decision in bad faith, then the notice would be bad and the detention would be unlawful. In none of those cases would there have been a decision of the kind contemplated by paragraph 2(2).

What the paragraph does not require, however, is that the decision should be the right decision, or without flaw, or otherwise impervious to successful challenge by way of judicial review. A decision made by the Secretary of State in good faith against a person liable to be deported is a decision within the contemplation of the paragraph even if it later appears that it is a decision which he should not have made or which he should not have made without further consideration."

46. In Abdi an Immigration Judge had allowed the Claimant's appeal against a decision to deport. The notice of decision had wrongly relied on section 3(6) of the 1971 Act rather than section 3(5)(a). Davis J (as he then was) did not accept the submission that because the Immigration Judge had decided that the notice was invalid the Claimant had been unlawfully detained. In paragraph 50 he said:

"The notice may have been defective, but it was still a notice of intention to deport. It is not to be regarded as a nullity by reason of the errors it contained. It is clear that the Secretary of State was lawfully empowered to serve a notice of intention to deport, intended to do so and had grounds for doing so."

47. Ullah and Abdi were concerned with the lawfulness of detention under paragraph 2(2) of Schedule 3. Mr. Johnson submitted that the statutory scheme provided, by way of an appeal under section 82(1) of the 2002 Act, the mechanism for challenging the lawfulness of a decision to make a deportation order. Until the appeal against the decision was finally determined the Secretary of State was prevented from making a deportation order. Once Mr. Draga's appeal had been finally determined by the Asylum and Immigration Tribunal in October 2007 (see paragraph 18 above), the Secretary of State was entitled to rely upon that determination dismissing Mr. Draga's appeal when making the deportation order in November 2007. The deportation order having been made, there was then power under paragraph 2(3) of Schedule 3 to re-detain Mr. Draga on the 30^th November 2007.
48. Dealing with the period after judgment in EN (Serbia) had been handed down, Mr. Johnson submitted that the deportation order continued in force (thus authorising continued detention under paragraph 2(3)) until Mr. Draga's appeal against the Secretary of State's refusal to revoke the order was finally determined. The revocation appeal was finally determined when the Secretary of State's application for permission to appeal against the First-tier Tribunal's decision allowing Mr. Draga's appeal was refused on 30^th September 2010, on which date Mr. Draga was released on bail.

Mr. Draga's response

49. Mr. Gill QC submitted that on the evidence before the Court (see paragraphs 8-13 above) there was only one reason why the Secretary of State had deemed that Mr. Draga's deportation was conducive to the public good and decided that a deportation order should be made against him: the fact that he had committed an offence that was specified by the 2004 Order. There was no attempt by the Secretary of State to assess either the seriousness of the crime or whether Mr. Draga was a danger to the community for the purposes of Article 33(2) otherwise than by reference to the combined effect of section 74(4) and the 2004 Order.
50. It followed that both the "deeming" decision under section 3(5) and the decision to give notice of intention to make a deportation order under section 5(1) were unlawful, because the 2004 Order was ultra vires. The deportation order made in November 2007 was unlawful because it depended for its validity upon the prior decision in August 2006 to make the order.
51. Mr. Gill submitted that even if the approach in Ullah was applied (see paragraphs 44 and 45 above), the condition precedent for lawful detention under paragraph 2(2) of Schedule 3 was not met in the present case because Mr. Draga was not a person who was "liable to deportation" when the Secretary of State decided to make a deportation order against him. Mr. Draga was not liable to deportation because the Secretary of State's deeming decision – that Mr. Draga's deportation was conducive to the public good – was based solely upon the ultra vires 2004 Order and was unlawful.
52. In any event, he submitted that Ullah (and Abdi) should not be followed. Ullah had been distinguished in D v Home Office: see paragraphs 120 and 121 of the judgment of Brooke LJ. The correct approach to the effect of a public law error in the decision making process is now to be found in the Supreme Court's decision in Lumba, and in particular in the following passages in the judgment of Lord Dyson JSC:

"65. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.

66. The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant's right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. 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: see Boddington v British Transport Police [1999] 2 AC 143, 158D-E.

67. Mr. Beloff submits that there are inherent problems in what I consider to be the correct and principled approach. First, it fails to take account of the nature or extent of the public law error. For example, he suggests that it treats for the purposes of liability as equally unlawful a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable) and a decision to detain for which there is no statutory authority at all……

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.

86. ….. Recognising that the court might reject the causation test, Mr. Beloff suggested a number of alternative approaches. The first is that false imprisonment should be confined to "no authority" cases: ie, cases in which there was in fact no authority to detain, without recourse to the legal "fiction" that, because of a public law error, an authority to detain which was in fact given should be treated as if it had no legal effect because it was ultra vires. The second is that detention should be vitiated only by pre-Anisminic error of law. The third is that vitiating circumstances should be restricted to bad faith and improper purpose. The fourth is that authority to detain should be vitiated only by failure to have regard to a material consideration which had an effect on the detention. The fifth is that it should be a requirement that the claimant shall have successfully applied in judicial review proceedings for the decision to detain to be quashed.

87. The first two of these suggestions seek to put the clock back to the pre-Anisminic era. For reasons given earlier, this is unwarranted. As regards the third and fourth suggestions, I have accepted at paragraphs 68 and 69 above that the detention must be vitiated by an error which is material in public law terms and have attempted to explain there what I mean by that. The fifth seeks unjustifiably to impose a procedural hurdle where none currently exists either at common law or in statute. To accede to this suggestion would be to engage in an unacceptable exercise of judicial legislation.

88. To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained. The Secretary of State must prove that the detention was justified in law. She cannot do this by showing that, although the decision to detain was tainted by public law error in the sense that I have described, a decision to detain free from error could and would have been made."

53. Mr. Gill submitted that, unlike Percy v Hall, there was, in the present case, only one decision maker throughout the process leading up to, and including, the decision to detain: the Secretary of State. Accordingly, the Judge was entitled to conclude in paragraph 62 of the judgment (see paragraph 39 above) that the error of public law which rendered the 2004 order unlawful did bear upon, and was material to, the decision to detain. The decision to make a deportation order was the foundation for the decision to detain, and the sole basis for the decision to deport was the unlawful 2004 order.

Discussion

54. I readily accept Mr. Johnson's submission that, in principle, the decisions under section 3(5)(a) and 5(1) of the 1971 Act are two separate decisions. The Secretary of State might deem that a person's deportation from the United Kingdom would be conducive to the public good under section 3(5)(a), but then decide under section 5(1) not to make a deportation order. I also accept the submission that the Secretary of State could decide that a person had committed a particularly serious criminal offence without reliance upon any presumption.
55. But on the facts of the present case these submissions are beside the point. It is clear from the documentary evidence produced by the Secretary of State that the section 3(5)(a) "deeming" decision and the section 5(1) decision to make a deportation order in the present case were taken on behalf of the Secretary of State by the same official, at the same time, and for the same reason: that Mr. Draga's offence of possession of a class A drug with intent to supply was one of those specified in the 2004 order. No other reason is given for either the deeming decision or the decision to make a deportation order, and there is no evidence of any attempt at any stage in the process by UKBA on behalf of the Secretary of State to consider, independently of the 2004 Order, either the degree of seriousness of Mr. Draga's particular offence, or whether he constituted a danger to the community.
56. In Lumba there was no challenge to the lawfulness of the decisions to deport/the deportation orders made in respect of the Claimants. The Claimants challenged the lawfulness of the decisions to detain them because those decisions were taken pursuant to the operation between April 2006 and September 2008 of an unpublished policy of blanket detention of all foreign national prisoners on completion of their sentences. That policy is not in issue in the present case, although it is to be noted that when Mr. Draga was detained on 2^nd August 2006 the policy of "blanket detention" was being operated by the Border and Immigration Agency: see paragraphs 5 and 16 of Lord Dyson's judgment.
57. Applying the approach in Lord Dyson's judgment in Lumba (see paragraph 52 above) to the present case, both the deeming decision under section 3(5)(a) and the decision to make a deportation order under section 5(1), although authorised by statute, were made "in breach of a rule of public law." The sole basis for both decisions was the unlawful 2004 Order. This error was sufficient to render those decisions unlawful, but did it bear upon, and was it relevant to, the decision to detain under paragraph 2(2) of Schedule 3?
58. I have not found this an easy question to answer. As a matter of first impression, the answer to the question is obvious: the unlawful decisions under sections 3(5)(a) and 5(1) did bear upon and were relevant to the decision to detain: without the prior decisions there could have been no decision to detain. But this approach does not pay sufficient regard to the statutory scheme as a whole. Making a deportation order is a two-stage process. First the Secretary of State must serve notice of the decision to make a deportation order. The notice explains that there is a right of appeal under section 82(1) against the decision, and sets out of the grounds of appeal under section 84(1). Those grounds are not limited to the ground that removal in consequence of the decision would be unlawful under the Refugee Convention or the ECHR, they enable the person served with the notice to challenge the lawfulness of the notice on the basis of any breach of a rule of public law: "that the decision is otherwise not in accordance with the law" (see paragraph 31 above). If there is an appeal the Secretary of State may not proceed to the second stage of the process – the making of the deportation order - until the appeal has been finally determined (see paragraph 33 above).
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.
63. In the present case, these judicial review proceedings were commenced in June 2008 and the law was not clarified until the judgment in EN (Serbia) was handed down in June 2009, some 21 months after the Tribunal's decision. If a Tribunal's decision is not to be treated as finally determining, as between the parties to an appeal under section 82(1), the lawfulness of a decision to make a deportation order, there can be no certainty as to whether there is lawful authority for detention under either paragraph 2(2) or 2(3) of Schedule 3, because at any stage it might be decided in a subsequent case that the legal basis for making the deportation order – the dismissal of the appeal against the decision to make the order – had been flawed.
64. If a person subject to a deportation order has not been removed from the UK, a subsequent decision by the Court of Appeal or the Supreme Court in another case which makes it clear that the Tribunal's decision to dismiss his appeal against the decision to make the order was made on a flawed legal basis, would be a proper ground for an application to the Secretary of State to revoke the order, and for appealing against a decision to refuse to revoke the order, but it would not invalidate either the Tribunal's decision finally determining the appeal, or the deportation order made in reliance upon that final determination.
65. The position may be tested by reference to the position of the person who is served with notice of a deportation order, but who does not appeal against the decision under section 82(1). It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the fact that no appeal had been brought within time against the decision to make the order as a lawful basis for proceeding to the second stage of the process: the making the order itself. A subsequent decision by the Court of Appeal or the Supreme Court which made it clear that the Secretary of State's decision to make the order had been made on an erroneous legal basis could not affect the lawfulness of a decision against which there had been no appeal. A person who appeals against a decision to make a deportation order and has his appeal "finally determined" by a decision of the tribunal dismissing his appeal cannot be in any better position than a person who does not appeal.
66. In the present case, Mr. Draga's appeal against the decision to make a deportation order against him was finally determined when the time for applying for permission to appeal to the Court of Appeal expired on 26^th October 2007 (see paragraph 18 above). In my judgment, when making the deportation order the following month the Secretary of State was entitled to rely upon the Tribunal's decision dismissing Mr. Draga's appeal as a final determination that the decision in 2006 to make a deportation order against Mr. Draga was a lawful decision. It follows that the Secretary of State is entitled to rely on the lawfulness (as determined by the tribunal) of the decision to make a deportation order as lawful authority both for Mr. Draga's detention under paragraph 2(2) of Schedule 3 from 2^nd August 2006 to 27^th March 2007, and for his re-detention under paragraph 2(3) of Schedule 3 when the deportation order was served upon him on 30^th November 2007.
67. The fact that there was an out-of-time application for permission to appeal to the Court of Appeal which was refused does not affect this analysis. Mr. Draga's appeal against the decision to make a deportation order against him was finally determined in October 2007, prior to the making of the order. The fact that the Court of Appeal refused Mr. Draga's application for an extension of time only serves to reinforce the proposition that there is a need for the statutory scheme to provide certainty as to whether or not there is lawful authority for detention. 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.
68. What is the position after the judgment in EN (Serbia) had made it clear that the sole basis (see paragraph 55 above) for the decision to make a deportation order against Mr. Draga had been unlawful? In their letter dated 29^th October 2009 Mr. Draga's Solicitors explained why the decision was unlawful and contended that the order should be revoked (paragraph 25 above). The Secretary of State refused to revoke the deportation order on the basis that Mr. Draga had ceased to be a refugee because he fell within Article 1C(5) of the Refugee Convention (see paragraph 26 above), referred to by the Tribunal as "the Cessation Order" in its determination promulgated on 8^th September 2010.
69. Given the primacy accorded by the statutory scheme to the Tribunal's determination as to whether a decision to make a deportation order is lawful, Mr. Draga is, in my judgment, now entitled to rely upon the Tribunal's determination in September 2010 that the Cessation Order "was made as a device by the [Secretary of State] to deport [Mr. Draga] faced with the fact that he could not rely on section 72(4) and for no other reason", just as the Secretary of State is entitled to rely on the Tribunal's determination in October 2007 that the decision to make the deportation order in 2006 was lawful.
70. We do not have any evidence as to the decision making process within the Home Office in respect of Mr. Draga's continuing detention after 2009 when the Secretary of State reviewed Mr. Draga's case in the light of the decision in EN (Serbia) and decided to give consideration to ceasing Mr. Draga's refugee status: see paragraph 24 above. It is true, as Mr. Johnson submitted, that the deportation order continued in force, but the Secretary of State had to make a separate decision under paragraph 2(3) of Schedule 3 as to whether Mr. Draga's detention should continue.
71. Since the policy relating to detention provided for regular administrative reviews, with written reasons being given for continued detention at monthly intervals (see the description of the Secretary of State's policy and practice in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] I WLR 1299, at paragraphs 15-21) it is a reasonable inference that, once it was realised that section 72(4) could not be relied upon to justify deportation, the decision to maintain detention was based, if not wholly then at least in large measure, upon the Cessation Order which the Tribunal found was "a device".
72. While it may be difficult to distinguish between those public law errors which will render a decision to detain unlawful, and those which will not (see paragraph 60 above) I have no doubt that reliance upon a "device" to maintain a deportation order without which continued detention could not lawfully be authorised is a public law error in the decision making process which renders the continued detention unlawful.

Conclusion

73. I would allow the Secretary of State's appeal in respect of Mr. Draga's detention between 2^nd August 2006 and 27^th March 2007, and from 30^th November 2007 until such time as the "device" of the Cessation Order was used by UKBA to maintain deportation. Thereafter I would grant a declaration that Mr. Draga's detention until 30^th September 2010 was unlawful. The evidence as to when UKBA's reliance on the "device" as the basis for maintaining deportation must have crystallised is far from satisfactory, but having regard to the policy of regular administrative reviews, and allowing a reasonable, if not generous, period for UKBA to give proper consideration to the representations in Sutovic and Hartigan's letter dated 29^th October 2009 seeking revocation of the deportation order, I would grant Mr. Draga a declaration that he was unlawfully detained between 1^st January and 30^th September 2010.

Lord Justice Kitchin:

74. I agree.

Lord Justice Pill:

75. I agree that the appeal should be allowed in part for the reasons given by Sullivan LJ.
76. The Secretary of State made a decision under section 3(5) of the 1971 Act that the deportation of Arben Draga was conducive to the public good. Pursuant to that decision, Mr Draga was detained on 2 August 2006. Documents disclosed by the Secretary of State reveal that, on 7 May 2006, a relevant official had expressed in a minute the view that "deportation would not be appropriate in this case." In a handwritten note of 14 May 2006, and a memorandum dated 26 June 2006, the view was again expressed that deportation action would not be pursued. However, in a note dated 29 June 2006, the opinion was expressed that the case should be pursued under section 72(4) of the 2002 Act by which a person shall be presumed to be liable for deportation, notwithstanding article 33(2) of the Refugee Convention, if he is convicted of an offence specified by Order of the Secretary of State made by statutory instrument and subject to annulment in pursuance of a resolution of either House of Parliament. There can be no doubt that sub-section, section 72(4) and only that sub-section, provided the basis for the deportation order of which notice was given on 2 August 2006, formally amended on 22 January 2007.
77. Section 72 of the 2002 Act is set out by Sullivan LJ at paragraph 37 of his judgment. The Order relied on was the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 ("the 2004 Order"), made by the Secretary of State under section 72(4). By virtue of section 72(4) and the 2004 Order, Schedule 1, conviction of an offence of possession of a controlled drug (class A or class B) with intent to supply created a presumption which excluded the protection for Mr Draga provided by article 33 of the Refugee Convention.
78. The deportation order was unsuccessfully challenged before the Asylum and Immigration Tribunal ("the Tribunal") in February 2007, the Secretary of State relying on section 72(4) of the 2002 Act and not 72(2). The Tribunal held that Mr Draga could be returned to Kosovo under article 33(2) despite his refugee status.
79. On 26 June 2009, the 2004 Order was found in EN (Serbia) to be unlawful, because it included offences which could not rationally be said to be "particularly serious" crimes within the meaning of section 72(4) of the 2002 Act. The reasons given for the deportation order in this case were confined to reliance on the unlawful 2004 Order and the deportation order was, therefore, unlawful, as the judge found.
80. Mr Draga's solicitors applied to the Secretary of State by letter of 29 October 2009 to revoke the deportation order. In October 2009, the Secretary of State refused to revoke and sought to uphold the Order on grounds other than section 72(4). Mr Draga appealed to the Tribunal. In a determination promulgated on 8 September 2010, the Tribunal concluded that a deportation order "that depended on the lawfulness of ultra vires subordinate legislation is unlawful". The Tribunal held that, because the Order was a nullity, the decision to terminate Mr Draga's refugee status and maintain the deportation order was unlawful. Mr Draga was "still a refugee with ILR" (indefinite leave to remain). He was released shortly after that determination.
81. I agree with the conclusion of the Tribunal and need to consider whether detention pursuant to the 2004 Order had been unlawful. I agree with Sullivan LJ that until application to revoke the deportation order was made, the detention was lawful. That is because detention was pursuant to the apparently lawful 2004 Order made by the Secretary of State following the procedure specified in section 72 of the 2002 Act, including placing the Order before Parliament.
82. I agree with Sullivan LJ that allowing an appeal against a deportation order does not necessarily render detention under that order unlawful, for the reasons he gives. I agree with his analysis. I do not consider that the analysis is invalidated because the same actor, the Secretary of State, made both the 2004 Order and the deportation order. In making both orders, the Secretary of State was acting under statutory powers but the power to make the 2004 Order was distinct from the power that then arose to make a deportation order in reliance on it.
83. In my judgment, the case is distinguishable from R v Governor of HMP Brockhill ex parte Evans (No.2) [2001] 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."
84. If and when an order is found to be unlawful, however, there is a duty on the Secretary of State to revoke it and reliance can no longer be placed on it to justify detention. It would be open to the Secretary of State to reassess the situation and make a fresh deportation order on different grounds but it was not in my view open to the Secretary of State to maintain a deportation order or to justify detention under it when it was based on the ultra vires 2004 Order. On a consideration of the material before this court, the Tribunal's finding that the deportation order had been made solely in reliance on section 72(4) was inevitable.
85. The Tribunal also found, in its determination of 8 September 2010, that in declining to revoke the Order, the Secretary of State adopted a "device". I read that as a finding that the Secretary of State was seeking after EN to rely on reasons other than the real reason for making the deportation order. That was a finding of fact with which I would not disagree but, as Mr. Gill QC submitted, it is not essential to the success of Mr Draga's claim that during a period after the decision in EN the detention was unlawful. It was unlawful because the 2004 Order on which it was based was, or should have been, known to the Secretary of State to have been founded on an ultra vires order. The Secretary of State should have revoked the deportation order.
86. I do not exclude the possibility that there may have been power, both in January 2007 and in October 2010, to make a deportation order and to detain on grounds other than reliance on the 2004 Order. However, as Lord Dyson JSC stated in Lumba, at paragraph 88, it is not open to the Secretary of State now to rely on the possibility that "a decision to detain free from error could and would have been made."
87. In my judgment, the right to detain ended when the Secretary of State had had a reasonable opportunity to consider the application, soundly based, to revoke the deportation order. Two months from receipt of Mr Draga's solicitor's letter of 29 October 2009 was in my judgment ample time. I would declare the detention unlawful from 1 January 2010.