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When is it lawful for the Home Office to impose a curfew? (8 August 2016)

Date: 08/08/2016
Duncan Lewis, Legal News Solicitors, When is it lawful for the Home Office to impose a curfew?

In the recent case of Gedi, R (On the Application of) v Secretary of State for the Home Department [2016] EWCA Civ 409, the Court of Appeal declared that the Home Office had imposed curfew restrictions on an individual in circumstances where they had no power to do so. As a result, the appellant was deemed to have been falsely imprisoned, and is entitled to damages from the Secretary of State for the Home Department (‘SSHD’).

The wider ramifications of this decision are that individuals who are currently subjected to curfew requirements imposed by the Home Office may also have viable claims for false imprisonment, and an entitlement to damages, if they can show that their curfew requirement was imposed unlawfully.

Background to the appellant’s case

The appellant was a Somali national who arrived in the UK as a child in 1998, and granted indefinite leave to remain with his family. He never applied for British citizenship. The appellant was subsequently convicted of a number of offences, resulting in him being sentenced to six and a half years’ detention in a young offenders’ institution. The SSHD detained the appellant following his release on licence, pending a possible deportation under section 36(1) of the UK Border Act 2007.

The appellant was granted bail by the First Tier Tribunal, with conditions of residence, reporting to the UK Border Agency (‘UKBA’), and cooperation with electronic tagging. On his release from detention, UKBA contractors – Serco – imposed residence conditions, as well as a curfew between 6pm and 10pm each evening on the appellant. A decision was taken to deport the appellant, as the SSHD considered that none of the section 33 exceptions to automatic deportation, listed in the Act, applied. The appellant subsequently surrendered himself to the Chief Immigration Officer who thereafter imposed bail conditions upon the appellant, in line with the residence and reporting requirements originally set by the First Tier Tribunal. Between the months of December 2013 to March 2015, the SSHD wrote to the appellant on eleven occasions, threatening criminal sanctions for the appellant’s ostensible failure to comply with his conditions.

During this time, the appellant had appealed to the First Tier Tribunal, against his deportation order, and was successful on the grounds that the Tribunal concluded the appellant would be in danger if he returned to Somalia, contrary to his ECHR rights.

The SSHD unsuccessfully appealed this decision to the Upper Tribunal and it went no further. In December 2014, the SSHD made a new decision to deport the appellant on the basis that he remained a danger to the community, and had failed to rebut the presumption specified in s 72(2) of the Nationality, Immigration and Asylum Act 2002. As a result, the SSHD argued that the appellant was excluded from the protection afforded by the Refugee Convention. He was informed that he was still, therefore, liable for deportation and that his current reporting and monitoring conditions (including the curfew) would continue. His indefinite leave remained.

The appellant challenged the curfew requirements imposed following his initial release from detention by way of judicial review proceedings.
The judge at first instance concluded that in principle, the SSHD and CIO’s have the power to impose a curfew on a foreign criminal awaiting deportation under paragraph 22(2) of schedule 2, and paragraph 2(5) of Schedule 3 to the Immigration Act 1971. He decided, however, that once the appellant’s successful appeal against the deportation order had been finalised, any curfew imposed on the appellant amounted to the tort of false imprisonment.

Issues in the Court of Appeal

In their introductory paragraph, Sir Brian Leveson (President) and Lord Justice Gross succinctly state as follows:

“This case concerns the power of the Secretary of State for the Home department (“SSHD”) and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion of deportation proceedings. This turns entirely on the terms of the legislation…”

In particular, the SSHD, through its contractors at Serco, argued that it had operated under the assumption that it could impose curfew requirements as part of the “restriction as to residence” requirement imposed by the FTT, and later adopted by the CIO.

The response of Sir Brian Leveson and Lord Justice Gross was as follows:

35. For our part, we simply do not accept that a right to impose a “restriction as to residence” under paragraph 2(5) of Schedule 3 to the 1971 Act necessarily incorporates a right to impose a curfew. Mr Tam agrees that the words of the 1971 Act refer to bail conditions that are aimed at securing the appearance of the individual at a specified time and place and the residence requirement provides a mechanism for a degree of oversight. Thus, whether by electronic monitoring or by door-step visit, the authorities can be satisfied that oversight of the whereabouts of those subject to such a restriction is maintained. The requirement, however, imposes a specific level of restriction on what those subject to it can do: it is neither more nor less than that they must reside at the specified address. Different people will reside where they live, however, in different ways. Ignoring employment commitments (on the basis that those liable to be detained are not allowed to work unless explicitly granted permission to do so), although many will want to sleep at night, others may well want to visit friends until the late hours and sleep during parts of the day. Both will be residing at the address at which they sleep.

36. In addition, this curfew (at least in its initial period) was not being used to provide specificity to the residence requirement and did not, in reality, support that requirement at all. The hours which, on any showing, it is common ground were imposed in April 2013 were between 18.00 and 22.00. Very many people will want to be out and about during the evening (rather than at home) and it is absurd to say that if an individual is absent from where he lives and sleeps between these hours, it means that he does not reside there.

37. Furthermore, it is important to underline the need for the clearest legislative authority for a requirement of this nature. As the appellant was repeatedly reminded, failure to observe any restriction imposed on him under Schedule 2 or 3 to the 1971 Act as to residence, employment or occupation constitutes a criminal offence. Even assuming a curfew requirement of, say, 02:00 to 05:00 (when most people would be in bed), returning after 02:00 would not, of itself, lead to the conclusion that the individual concerned no longer resided at the address identified. Electronic monitoring might provide evidence sufficient to justify the inference of non-residence (as would other evidence of change of residence) but not being present between 00:00 and 02:12 (to take the example of the breach letter of 21 December 2013) does not justify the threat that “failing to be present as required” creates a liability to prosecution under s. 24(1)(e) of the 1971 Act.

In summary, the SSHD had no statutory justification for the making of the curfew requirement; and so far as concerns paragraph 2(5) of Schedule 3 to the Immigration Act 1971, a right to impose a “restriction as to residence” does not necessarily incorporate a right to impose a curfew.


Observations and wider ramifications

The decision in Gedi is a welcome one, and serves as a stark reminder to the Home Office that it is simply not good enough to assume that it has the power to restrict individual liberty, in circumstances which are not clearly prescribed by law. It is worth noting that in the light of the confusion caused by the issues in this case, the Director of Criminal casework at Immigration Enforcement has issued guidance that electronic monitoring and curfews should be specifically requested from the First Tier Tribunal as conditions of bail on a foreign criminal’s release from detention on bail.

Further, and as pointed out in an interesting reflection piece by the Appellant’s legal representative, enforcement provisions relating to bail within the Immigration Act 2016 present a dangerous development, when considered in the light of the SSHDs antics in Gedi. Under the Act, for instance, an Immigration Officer now has the power to arrest an individual where he or she has reasonable grounds for believing that the person is likely to fail to comply with a bail condition. Such draconian and pre-emptive powers, in circumstances where the bail conditions themselves may not have been properly imposed, is deeply concerning.

For individuals who are currently subjected to curfew requirements by the Home Office, steps should be taken to verify that the requirement has been lawfully imposed. In particular, individuals should write to the Home Office to request copies of the First Tier Tribunal grant of bail, and also the Chief Immigration Officer grant of Bail. If the individual’s present curfew requirements, as set out in recent ‘Notice of Restriction documents’ were not identified in these older documents, they may have a claim for damages under the tort of false imprisonment. Individuals have 6 years within which to bring a false imprisonment claim, so they may want to request and review these documents, even if they are no longer subjected to curfew monitoring.

If you have been subjected to curfew requirements by the Home Office in the past six years, Duncan Lewis may be able to assist you with investigating whether you are entitled to damages in light of the decision in Gedi.
If you would like to find out more, or would like to speak to a specialist within Duncan Lewis’ public law team who can assist with this, please do not hesitate to contact Toufique Hossain on: 020 3114 1128 or at toufiqueh@duncanlewis.com, or Rebecca Carr on 0203 114 1219 or rebeccac@duncanlewis.com, who will be happy to advise you further.


Returning to the title of this article, and to call a spade a spade; it’s only lawful for the Home Office to impose a curfew on an individual when the Home Office has the express power in law to do so, which in Mr Gedi’s case it did not.

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