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Cite as: [2017] EWHC 2690 (Admin)

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		Neutral Citation Number: [2017] EWHC 2690 (Admin)
		Case No: CO/87/2017

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

30/10/2017

B e f o r e :

THE HONOURABLE MR JUSTICE LEWIS
____________________

Between:

	R (on the application of Lupepe)	Claimant
	- and -
	Secretary of State for the Home Department	Defendant

____________________

Dinah Rose Q.C. and Jude Bunting (instructed by ITN) for the claimant
Robin Tam Q.C., Mathew Gullick and Emily Wilsdon (instructed by the Government Legal Department ) for the defendant
Hearing dates: 11th , 12th and 13th October
____________________

HTML VERSION OF JUDGMENT
____________________

THE HONOURABLE MR JUSTICE LEWIS:

INTRODUCTION

The claimant is a national of the Democratic Republic of Congo who is subject to a deportation order as the defendant considers that his removal from the United Kingdom is conducive to the public good. The claimant brings a claim for judicial review of the imposition on him of what has been referred to as a curfew, namely a requirement that he be present for a certain number of hours each day at specified premises.

The claim relates to three separate periods namely (1) 15 November 2012 to 1 December 2013 (2) 27 January 2014 to a date in either August or November 2016 and (3) 8 November 2016 to the present. The curfew in the first two periods was imposed pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 ("the Act"). The defendant accepts that the restriction imposed in the first two periods was unlawful as that paragraph did not authorise the imposition of a curfew: see the decision of the Court of Appeal in R (Gedi) v Secretary of State for the Home Department [2016] 4 WLR 93.

In relation to the third period, the defendant detained the claimant and then released him immediately on bail with a condition that he be present at specified premises between 23.00 to 06.00 each day. The claimant contends that that condition is unlawful. The claimant contends that the defendant has no power to impose a curfew where no such condition was imposed by the First-tier Tribunal which authorised his release from detention in the first place and, also, that a curfew cannot be imposed for the purpose of reducing the risk of re-offending. Further, the claimant contends that the defendant's decision to impose the curfew is unlawful as it was influenced by an unpublished policy, and was taken without the claimant being given the opportunity to make representations on the curfew. The claimant also contends that the decision was unlawful for other reasons too. A claim for damages for false imprisonment arising out of any unlawfully imposed curfew has been adjourned, and a claim for misfeasance in a public office stayed, pending the outcome of the claim for judicial review.

THE FACTUAL BACKGROUND

The Claimant's Offending and the Deportation Order

The claimant is a national of the Democratic Republic of Congo. He came to the United Kingdom in 1989 when he was aged 5. He does not have British citizenship but he was granted indefinite leave to remain in 2005.

The claimant has committed many criminal offences over the years. By the summer of 2005, he had been convicted on 20 occasions for approximately 39 offences. In August 2006, he was convicted of a serious offence of false imprisonment and blackmail. A 14 year old boy was kidnapped and held against his will for many hours in what the sentencing judge said must have been a terrifying ordeal for him. The claimant was not involved in the kidnapping but was involved in falsely imprisoning the young boy and in blackmail. The judge imposed a sentence of 5 years' imprisonment to reflect the serious nature of the offence.

In October 2007, the Secretary of State decided that, in view of the claimant's conviction, it was conducive to the public good to deport the claimant. The defendant subsequently made a deportation order which was served on the claimant on 8 October 2008. That order required the claimant to leave the United Kingdom and prohibited him from re-entering the United Kingdom. In October 2008, the claimant was transferred to an immigration detention centre with a view to deporting him from the United Kingdom.

In 2011, the claimant committed a further offence, this time of assault. He was sentenced to 5 weeks' imprisonment.

The claimant sought a revocation of the deportation order. That was refused and the claimant appealed against the refusal to revoke the order. The appeal was dismissed on 26 June 2012 and, by 6 July 2012, he had exhausted all his rights of appeal.

The Grant of Bail and The First Period during which a Restriction was Imposed

There were difficulties in obtaining the necessary travel documentation to return the claimant from the United Kingdom to the Congo. He remained in detention. A number of applications for bail were refused in 2011 and 2012. In about November 2012, the claimant applied again to the First-tier Tribunal for release on bail. The defendant opposed the release and grant of bail and a document, referred to as a bail summary, was prepared setting out the reasons why the defendant opposed his release and the grant of bail. In brief summary, it was thought that the claimant posed an unacceptable risk to the public given that he had been convicted of serious criminal offences of false imprisonment and blackmail. The bail summary also said that, in the opinion of the writer, there was a high probability that the claimant would not surrender to bail and would attempt to avoid arrest and the summary referred to his use of aliases and the prospect that he would abscond and take on another identity to avoid detection if released. The reasons for opposing bail also referred to conditions that the probation service wished to be attached to any standard conditions of bail; those additional conditions were intended to prevent the claimant contacting his co-accused or having unsupervised contact with children under the age of 16. The bail summary also set out the conditions that the defendant sought to be imposed if bail were granted. They were that the claimant lived and sleep each night at a specified address, that he report twice weekly to a specified reporting centre and that he co-operate with electronic monitoring.

No record of the bail hearing before the First-tier Tribunal was available at the hearing before me. Nor was any record of the decision of that tribunal available. The claimant was released on bail on 15 November 2012. His evidence is that that was subject to conditions to live and sleep at a specified address, to report to the Home Office every day between the hours of 9 a.m. and 10 a.m. and to be subject to electronic monitoring.

The usual position is that an applicant who is granted bail by the First-tier Tribunal is required to surrender himself to an immigration officer at a particular place and time. The bail conditions imposed by the First-tier Tribunal would then cease to apply when the person surrendered himself at that address, unless the immigration officer decided to continue the grant bail on those (or different) conditions: see the decision of the Court of Appeal in R (AR (Pakistan)) v Secretary of State for the Home Department [2017] 1 WLR 255 at para. 27.

The implication is that the claimant surrendered himself in accordance with bail and the defendant decided not to continue the bail conditions but to impose restrictions under other statutory powers. On 15 November 2012, therefore, the claimant was issued with a notice of a restriction imposed pursuant to paragraph 2(5) of Schedule 3 to the Act. That notice required the claimant to report weekly to a reporting centre, to live at a particular address, to be electronically tagged, and "to be present at the address shown above between the hours of 8 p.m. and 9 a.m. every day".

The clear implication is that the defendant did not request a condition from the First-tier Tribunal that the claimant be subject to a curfew. That was not one of the bail conditions requested in the summary. The claimant does not refer in his statement to any such condition being requested or discussed by the First-tier Tribunal. Mr Welsh, an assistant director in the criminal casework section of the immigration enforcement directorate, says in his witness statement in these proceedings that, prior to the decision in Gedi, the defendant had, erroneously, assumed that if a condition requiring electronic monitoring was imposed by the First-tier Tribunal then the defendant was permitted to impose a curfew. That is further confirmed in the witness statement Mr Welsh made in the proceedings in Gedi, which is exhibited to the witness statement of Mr Devereux in these proceedings. He states that, prior to 24 July 2015, bail summaries did not routinely ask the First-tier Tribunal to impose a curfew and, prior to the decision in Gedi, the Home Office had been of the view that a request for a curfew did not need to be made as the imposition of a curfew was considered to be an integral and inevitable consequence of the imposition of a tag. On the balance of probabilities, therefore, the First-tier Tribunal was not requested to, and did not specifically, consider whether bail should be subject to such a condition.

On 9 April 2013, the defendant varied the restriction to enable the claimant to travel to see his children. The claimant was required to be present at the specified address between 20.00 and 07.00 each Monday to Wednesday, 20.00 to 00.50 each Thursday and Saturday, and 23.00 to 07.00 each Friday and Sunday. That restriction continued to apply until 1 December 2013, when the claimant was detained again in order to be interviewed at the Congolese Embassy with a view to obtaining the necessary travel documentation to be able to deport the claimant to the Congo.

The Second Grant of Bail and the Second Period during which a Restriction Was Imposed

In January 2014, the claimant again applied to the First-tier Tribunal for bail. The defendant again opposed bail and a bail summary was prepared. That referred, amongst other things, to the claimant's convictions for false imprisonment, blackmail and the 2011 offence of assault, and set out reasons why the writer considered that the claimant would not comply with any bail conditions. The reasons also stated that, in the event of bail being granted the clamant should remain in detention until the Home Office had arranged for him to be electronically monitored by tag and to comply with the conditions of electronic monitoring as instructed by the Home Office. The conditions sought in the event of the bail being granted included conditions that the claimant live and sleep at a specified address, that he report on a "reporting frequency basis" to a reporting centre (no particular frequency of reporting appears to have been requested in that document) and to comply with any restriction set by electronic tagging.

Bail was granted after a hearing before the First-tier Tribunal on 27 January 2014. The primary conditions were that the claimant appear before a chief immigration officer at a specified address on 3 March 2014. The secondary conditions of bail were that;

"1. The appellant shall live and sleep at the address set out above. 2. The applicant shall report to the UK Border Agency

At: Liverpool Reporting Centre, Capital Building, Union Street, Liverpool L3 9AF

On every First Monday of every month

Between the hours of 10 a.m. and 4 p.m. beginning Monday 3 March 2014.

3. Bail is granted subject to (i) the applicant co-operating with the arrangements for electronic monitoring (tagging) as set out in s. 36 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and ii) the UK Border Agency arranging electronic monitoring within two working days of the grant of bail. If electronic monitoring is not effected within two working days then the applicant is to be released on condition he complies with the above requirements."

The conditions of bail therefore imposed monthly reporting requirements whereas the pervious grant of bail had required more frequent reporting. The claimant in his first witness statement comments that the judge at the First-tier Tribunal specifically commented on that and explained that the tribunal was imposing more relaxed reporting requirements because he had been in detention for so long. The claimant specifically confirms in his first and third witness statements (dated 20 October 2016 and 20 October 2017 respectively) that there was no mention or discussion of any curfew requirement during the course of the hearing before the First-tier Tribunal.

The claimant was released on 27 January 2014. He was served with another notice of restriction on that day which stated that the defendant was imposing restrictions pursuant to paragraph 2(5) of Schedule 3 to the Act. They include requirements to report to a reporting centre once a month, to live at a particular address and, once electronic monitoring equipment had been installed, to be present at the address between 23.00 and 06.00 each day.

The clear implication is that the First-tier Tribunal was not requested to, and did not specifically, consider whether bail should be subject to such a condition. The bail summary did not request such a condition. The claimant expressly states in his evidence that a curfew condition was not discussed (whereas the reporting requirement was). That would accord with the erroneous understanding of the defendant described at paragraph 13 above as to the consequence of an electronic monitoring condition being imposed. On the evidence before me, it is clear that the First-tier Tribunal did not specifically address the question of whether or not the grant of bail should be subject to a curfew condition.

The Gedi Litigation

In about June or July 2015, a Somalian national, Mr Gedi, challenged the lawfulness of a curfew imposed on him by way of a restriction issued pursuant to paragraph 2(5) of Schedule 3 to the Act.

On 24 July 2015, Mr Devereux, an assistant director of criminal case work in the immigration enforcement directorate of the Home Office, issued an instruction to case workers dealing with cases where a foreign national offender applied to the Home Office or the First-tier Tribunal for bail and a case worker requested the imposition of an electronic monitoring condition if bail were granted. The instruction was to the effect that the case worker should also request a condition requiring the bailed person to be present at a specified address for certain hours each day if the foreign national offender had committed one of a list of specified offences or in other appropriate cases. The instruction also noted that case workers should specify the periods that a foreign national offender was required to be present at the residential address. Case workers were told that, when requesting such a condition, they should use the table in the instruction. That provided for a 10 hour curfew if the offender had committed one of 8 of the most serious criminal offences, or a curfew of 2 periods of 2 hours each (e.g. 14.00 to 16.00 and 22.00 to 00.00) if the offender had committed one of the offences set out in a list of other serious offences. That instruction only applied when a foreign national offender applied for bail. It did not apply to those, such as the claimant, who had already been released from detention.

Permission was granted to Mr Gedi to bring his claim in August 2015. On 9 October 2015, Edis J. handed down judgment in R (Gedi) v Secretary of State for the Home Department [2015] EWHC 2786 (Admin). He held that a curfew, that is a requirement that a person be at a specified location for specified hours each day, could be imposed either as a condition of the grant of bail under paragraph 22 of Schedule 2 to the Act or as a restriction on residence within the meaning of paragraph 2(5) of Schedule 3 to the Act. It was not a condition authorised by section 36 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 as that provided for a requirement to co-operate with electronic monitoring (that is, to facilitate the functioning of the equipment) which was intended to show whether the individual was at a particular address. Such a monitoring requirement did not permit the defendant to require that the individual be at that address during specified hours.

According to Mr Devereux, he and others dealing with the matter in the Home Office thought, wrongly, that the decision applied only to those who were still on bail on conditions fixed by the First-tier Tribunal. It was not appreciated that the High Court ruling applied also to those (such as the claimant) who had already been granted bail by the First-tier Tribunal and had then surrendered to the immigration officer (in accordance with the bail conditions and thereby bringing the First-tier Tribunal bail to an end) and who were subject to curfews purportedly imposed pursuant to paragraph 2(5) of the Act. On 2 December 2015, an instruction was sent out that persons who were on bail granted by the First-tier Tribunal should have their case reviewed. The instruction was amended in a minor regard later that month. The instruction did not apply to those such as the claimant who had been released and were purportedly subject to a curfew imposed by virtue of paragraph 2(5) of Schedule 3 to the Act.

On 17 May 2016, the Court of Appeal held that the power to impose a restriction as to residence under paragraph 2(5) of Schedule 3 to the Act did not authorise the imposition of a curfew. As the curfew in that case had been imposed pursuant to the exercise of that power (and not as a condition of the grant of bail under paragraph 22 of Schedule 2 to the Act) the curfew was unlawfully imposed.

Mr Devereux confirms in his witness statement that he and others considered, wrongly, that the decision of the Court of Appeal was limited to those who were currently on bail granted by the First-tier Tribunal. He did not consider that there was a need to review the cases of those, such as the claimant, who had been released and then placed on restrictions imposed pursuant to paragraph 2(5) of Schedule 3 to the Act. Following the receipt of legal advice, it seems, it was accepted that all curfews imposed pursuant to Schedule 3 to the Act needed to be reviewed as they were unlawful.

The Review of the Claimant's Curfew

On 12 August 2016, Mr Welsh issued an instruction saying an immediate review of all cases subject to electronic monitoring and curfew was needed. The instruction set out three steps to follow. Step 1 was to "Cease all curfews for individuals currently released on restriction order". That involved removing the curfew (by serving an amended notice of restriction setting out the requirements that remained in place but with the reference to the curfew requirement removed) and notifying the foreign national offender accordingly whilst reminding him that he was still required to wear the tag and otherwise comply with the requirement of electronic monitoring.

Step 2 involved reviewing cases to "assess if they meet the current electronic monitoring criteria as if they were a new case". If a case did meet the criteria, step 3 would involve re-detaining the person concerned when he reported and then releasing him on bail granted by a chief immigration officer with a curfew attached as a condition of the grant of bail. Attached to this instruction was a document headed "Basic requirements for cases suitable for [Electronic Monitoring]". That set out criteria applicable to all cases and section 2 set out additional criteria in the case of foreign national offenders. That section noted that case workers should always request an electronic monitoring condition in cases where the offender had committed one of a series of specific offences including kidnapping. The document noted that:

"It may still be appropriate to request tagging in cases where the offence is not on this list if, on the facts of the case, the case owner considers that the [foreign national offender] poses a high risk of harm, reoffending or absconding. In such cases the authority of an Assistant Director must be obtained to request tagging."

The document also indicates that the bail summary should include a request for an electronic monitoring condition and should also state the specific curfew period required. A table was provided to assist the caseworker in identifying the suitable period. That set out two tables. The first indicated that a curfew from 20.00 to 08.00 each day should be requested where one of a small number of extremely serious offences had been committed, e.g. murder, manslaughter, rape, sexual offences against a child or terrorist offences. The second table indicated that a curfew requiring the offender to be present at the specified address "for at least two periods of two hours in any 24 hour cycle (e.g. 14.00 to 16.00 and 22.00 to 00.00)" in cases involving a list of other serious crimes including kidnapping. There was provision for an annual review.

That document appears to be directed towards the approach that caseworkers should adopt when bail is applied for and indicated the conditions that the caseworkers should request (from the chief immigration officer or the First-tier Tribunal) rather than being directed at the person who decided whether to grant bail. However, the document was attached to an instruction telling case workers to carry out a review of existing cases and would appear to be intended to be taken into account in the process of reviewing existing cases where a curfew had been removed. It would appear to be intended to be taken into account in deciding whether a curfew was appropriate and, by whatever appropriate machinery, ensuing that the chief immigration officer granting bail was appraised of the view that a curfew of a particular length was considered appropriate by the case worker concerned.

So far as the claimant is concerned, he had been convicted of an offence of false imprisonment but not of kidnapping. False imprisonment did not itself appear in the list of offences set out in the instructions where a curfew had to be sought (although the document provided that requests may still be appropriate in other cases if on the facts there was a high risk of harm, re-offending or absconding as indicated above).

In his first and third witness statements, Mr Baker, a senior executive officer within the immigration enforcement directorate of the Home Office, explained how the review of the claimant's case was carried out. As the existing curfew had not been lawfully imposed, Mr Baker recognised that that curfew had to be lifted. Mr Baker then carried out a preliminary, or threshold, exercise of determining whether a curfew might continue to be required in accordance with the substance of the guidance on curfews (Mr Baker refers in his first witness statement to the guidance issued by Mr Devereux on 18 January 2015 but this is in materially similar terms to that issued by Mr Welsh on 12 August 2016). He identified that the claimant was subject to a curfew and was a person whose offence meant that it might be appropriate to continue to have conditions requiring him to comply with a curfew. He took that view as the guidance indicated that a curfew should always be requested in cases of kidnapping and that the circumstances of the claimant's offence were so clearly linked to an offence of kidnapping (even though the claimant had not been part of the group that had physically snatched the victim off the street) that a similar approach should be taken in his case.

As Mr Baker explains in his third witness statement, the next stage was:

"… for a decision to be made about whether a curfew should be re-imposed given the facts of the individual case. This was for case owners to assess. I referred Mr Lupepe's case to the case-owning team to decide whether Mr Lupepe's case did require the re-imposition of a curfew through the detention and bailing process that had been set out in August 2016. It is clear from subsequent events that the case-owner decided that this was required".

There is no evidence from the case worker as to what factors he or she took into account, or how the decision was taken to seek to re-impose a curfew in the claimant's case. By letter dated 19 September 2017, the claimant's solicitor requested "any documents evidencing or taken into account in that review". By letter dated 21 September 2017, solicitors for the defendant said that they were instructed that "there are no documents or details of the case review".

The Notification of the Ending of the Curfew

An issue has arisen as whether, and on what date, the claimant was notified that the curfew had been brought to an end. Counsel for the claimant and the defendant were anxious that this court should resolve that factual issue. It arises in the context of the judicial review as the challenge includes a challenge to the second period in which a curfew was imposed and, as part of that, it is appropriate to determine the times at which the curfew was in place. Furthermore, Ms Rose Q.C. for the claimant was particularly anxious that I should determine the issues as that may assist in narrowing the issues that the parties would have to consider in relation to any claim for false imprisonment arising out of the second period of curfew (where the curfew is admitted to have been unlawfully imposed). Both parties submitted that the court has all the necessary evidence to resolve the issue and no cross-examination is required.

In my judgment, on the evidence before me, the decision to lift the curfew was taken on 23 August 2016, and a letter notifying the claimant's solicitors was sent to them and received at their offices on 26 August 2016. I reach that conclusion for the following reasons. First, the instruction of 15 August 2016 contemplated that a letter would be sent to persons whose curfew was being lifted notifying the person of that fact. Secondly, Mr Baker says in his witness statement that a decision was taken on 23 August 2016 to lift the curfew and a letter was sent to the claimant and to his then solicitors at their respective addresses. There is a letter dated 23 August 2016 exhibited to his statement which in terms notifies the claimant that the curfew requirement had been removed but that he was required to wear a tag and be monitored, and referring to an accompanying notice which contained a requirement to live at a particular address and report monthly to a specified reporting centre. The claimant accepts that a decision was taken and a letter sent. It is agreed that the letter sent to the claimant was returned to the defendant undelivered.

Thirdly, there is evidence from an employee of the Royal Mail that the letter said to have been sent to the claimant's then solicitors was sent using a special delivery guaranteed process, that the letter would have been delivered to the address on the letter and that it would not have been left at any neighbouring address: see the material exhibited to the second witness statement of Mr Baker. Fourthly, there is evidence that the letter was signed for. A copy of the handwritten signature has been provided. The Royal Mail has read that name as "McNichlous" (see, for example, the printed out version on the letter from the customer service adviser sending the copy of the handwritten signature). The handwritten signature, in my judgment, reads as McNicholas (not McNichlous). Fifthly, there was a receptionist working at the claimant's then solicitors' office named McNicholas. Neither the claimant's then or current solicitors have a copy of that letter in their file and it is not known what happened to any copy of the letter that the claimant's then solicitors might have received.

In my judgment, the overwhelming evidence is, and I find as a fact, that the defendant decided to lift the claimant's curfew on or about 23 August 2016, sent a letter notifying the claimant's then solicitors of that fact and that letter was then received at their offices on 26 August 2016 and signed for by an employee of theirs.

The Claimant's Detention and the Re-imposition of a Curfew

On 8 November 2016, the claimant attended at the specified reporting centre. He was handed a letter which said:

"The Secretary of State is changing the conditions of your release and is moving you from release on Restriction Order to Chief Immigration Bail. In order to do this, you are nominally detained for a very short time. You will be free to leave once your new bail conditions have been served upon you."

The claimant was provided with a document with a box ticked indicating that he had been granted bail under paragraph 22 of Schedule 2 to the Immigration Act 1971. He also signed a document entitled "recognizance of applicant for bail" in which he undertook to pay the sum of £1.00 if he did not comply with certain conditions as to reporting and residence and a requirement to be present at the residential address between the hours of 23.000 and 06.00 each day.

In his first and third witness statements, Mr Baker explains that the curfew was lifted in the claimant's case in August 2016 as the curfew then imposed had to be lifted for legal reasons, that is, presumably, because it had been imposed pursuant to paragraph 2(5) of Schedule 3 to the Act when that paragraph did not confer such a power. The claimant was not judged to present an acceptable risk of release without a curfew and that that was not the reason why the curfew was lifted. The fact that the defendant did not seek to re-impose the curfew until 8 November 2016 was because officials were working through the cases of those affected by the decision of the Court of Appeal in Gedi and 8 November 2016 was the claimant's first reporting day after the necessary paperwork had been drafted for the detention and grant of bail in his case. Mr Baker also confirms that of 217 cases in which curfews were reviewed, there were 11 cases where no curfew was considered necessary on the facts of those cases and 26 cases where detention and the grant of bail with a curfew was not appropriate due to the death, detention, deportation or absconding of the individual concerned. He also indicates that where an established curfew had been in place prior to detention, the duration of the curfew would not be changed notwithstanding the guidance given in January and August 2016 on the duration of curfews.

THE LEGAL FRAMEWORK

Section 3(5) of the Act provides, so far as material 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…."

Section 5(1) of the Act then provides a power to make a deportation order and section 5(5) applies Schedule 3 to the Act to the detention or control of persons in connection with deportation. Paragraphs 2(2) and (3) of Schedule 3 to the Act provides power to detain a person who has been notified of a decision to make a deportation or where a deportation order is in force. Paragraph 2(4A) of Schedule 3 to the Act (which was inserted by section 54 of the Immigration and Asylum Act 1999) provides that:

"(4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule."

Paragraph 22(1) to (4) of Schedule 2 to the Act provides as follows:

"(1) The following namely—

(a) a person detained under paragraph 16(1) above pending examination;

(aa) a person detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enter; and

(b) a person detained under paragraph 16(2) above pending the giving of directions,

may be released on bail in accordance with this paragraph.

"(1A) An immigration officer not below the rank of chief immigration officer or the First-tier Tribunal may release a person so detained on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before an immigration officer at a time and place named in the recognizance or bail bond or at such other time and place as may in the meantime be notified to him in writing by an immigration officer

"(1B) sub-paragraph (1)(a) above shall not apply unless seven days have elapsed since the date of the person's arrival in the United Kingdom.

"(2) The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the immigration officer or the First-tier Tribunal to be likely to result in the appearance of the person bailed at the required time and place; and any recognizance shall be with or without sureties as the officer or the First-tier Tribunal may determine."

The defendant has issued guidance on detention and temporary release which is contained in chapter 55 of the enforcement instructions and guidance ("the Enforcement Guidance") and on the policy on bail which is contained in chapter 57 of that guidance.

THE ISSUES

The claimant contends, and the defendant accepts, that the curfews imposed during the first and second period were unlawful as they were imposed by virtue of paragraph 2(5) of Schedule 3 to the Act. In the light of the decision of the Court of Appeal in Gedi, that paragraph does not confer power to impose a restriction such as the curfew imposed on the claimant in those two periods. The amended grounds of claim did not, and did not need to, challenge the lawfulness of the imposition of the curfew in the first two periods on other grounds. In those circumstances, it is not necessary to say anything further in this judgment as to the legality of the restriction imposed during those two periods. The question of whether the imposition of such a curfew amounts to an imprisonment for the purposes of the tort of false imprisonment, whether substantial damages, or only nominal damages, would be payable, whether aggravated or exemplary damages would be payable, and the assessment of any damages award form part of the claim for damages for false imprisonment. That claim was not considered at this hearing but was adjourned. The claim for damages for misfeasance in a public office has been stayed.

The principal issue at this hearing concerned the challenge to the lawfulness of the curfew imposed as a condition of bail on 8 November 2012, following the detention of the claimant on that date. The claimant has raised a number of grounds of challenge to the imposition of the curfew. I deal with them in the order set out below, rather than the order in which the arguments were advanced orally or in writing. In broad terms, in the light of the amended grounds, as refined in skeleton arguments and oral submissions, the principal issues that arise can be conveniently combined together and summarised as follows:

(1) Was the defendant entitled to impose a curfew given that the First-tier Tribunal had not imposed such a condition when it had granted bail?

(2) Could the power to grant bail, and impose a curfew condition, be used to reduce the risk of the claimant re-offending?

(3) Was the decision to impose the curfew condition unlawful as it was made (a) having regard to an unpublished policy and (b) without giving the claimant the opportunity to make representations on whether a curfew should be imposed?

(4) Was the decision to detain the claimant unlawful because the defendant failed to apply the provisions of chapter 55 of the Enforcement Guidance when deciding to detain the claimant? and

(5) Was the decision to impose the curfew condition unlawful on a number of other grounds, including whether the power was exercised for a proper purpose or was disproportionate?

THE FIRST ISSUE – IMPOSING A CURFEW CONDITION WHERE NO SUCH CONDITION HAD BEEN IMPOSED BY THE FIRST-TIER TRIBUNAL.

Ms Rose, on behalf of the claimant, submits that it was not open to the defendant to impose a curfew condition given that the First-tier Tribunal had determined to grant bail, without the imposition of a curfew. Ms Rose submits that the question of whether the claimant should be released and, if so, on what conditions, was a matter that the First-tier Tribunal considered when hearing the claimant's application for bail. That tribunal determined that the claimant should be released and determined what conditions of bail should be imposed. The conditions did not include a curfew condition. In those circumstances, it is submitted that the defendant could not thereafter seek to impose different and more onerous bail conditions than those determined as appropriate by the First-tier Tribunal unless there had been a material change of circumstance. Ms Rose relied, in particular, upon the decision of the Court of Appeal in R v Secretary of State for the Home Department ex p. Danaei [1998] INLR 124 and the observations of Lord Neuberger (with whose judgment Lord Kerr and Lord Reed agreed) in R (Evans) v Attorney General [2015] 2 A.C. 1787 . In so far as it was said that the First-tier Tribunal had not been asked to impose such a condition, Ms Rose submitted that that consideration would not alter matters as it was a matter of choice for the defendant to seek, or not to seek, such a condition and if she chose not to do so, or if for any reason she did not seek a condition, she could not, thereafter, in effect circumvent the process and impose such a condition.

In ex p. Danaei, an immigration adjudicator heard an appeal against a decision of the Secretary of State refusing the claimant's claim for asylum. In the course of his decision, the adjudicator found as a fact that the claimant had had an adulterous relationship in Iran with a married woman and had fled for that reason but found that he did not face any risk of persecution as a result and so his appeal failed. On a subsequent application for leave to remain, the Secretary of State refused to accept that finding of fact and decided that the applicant's account of an adulterous relationship causing him to flee Iran was untrue. The issue was the extent to which the Secretary of State was bound by the finding of fact made by the immigration adjudicator on a related, but failed, asylum appeal. The Court of Appeal held that it was unreasonable, in the public law sense, for the Secretary of State in this context to disagree with a factual conclusion of an adjudicator who had heard the evidence unless the adjudicator's conclusion was itself unlawful as a matter of public law or unless fresh material had become available since the hearing.

To similar effect is the decision of the Court of Appeal in R v Warwickshire County Council ex p. Powergen (1996) 97 L.G.R. 617 where the Court of Appeal held that a highway authority could not depart from the decision of a planning inspector on a planning appeal that a particular development did not give rise to highway safety issues and it could not act on the basis that the proposed development would create highway dangers. Similarly, the dicta of Underhill J., as he then was, at paragraphs 11 and 13 of his judgment in R (S) v Secretary of State for the Home Department [2006] EWHC 228 (Admin), indicate that the defendant could not re-detain a person released on bail, or vary conditions of bail, where to do so would undermine the basis on which a tribunal had reached its decision

In the Evans case, the issue concerned the question of whether certain communications passing between the heir to the throne and government departments should be disclosed. On an appeal against a refusal by the Information Commission to order disclosure, the Upper Tribunal held that the public interest in disclosure outweighed the public interest in exempting such correspondence from disclosure. The Attorney General then issued a certificate relying on powers conferred by section 53 of the Freedom of Information Act 2000 which provided, in effect, that such a decision would cease to have effect where the Attorney General "has on reasonable grounds formed the opinion" that non-disclosure would comply with the statutory provisions. Lord Neuberger concluded that that section 53 of the relevant Act should be interpreted narrowly, if possible, to give effect to certain constitutional principles including the principle that a decision of a court is binding as between the parties and cannot be set aside by the executive so that, as expressed at paragraph 59 of the judgment, where:

"a court has conducted a full open hearing into the question of whether, in the light of certain facts and competing arguments, the public interest favours disclosure of certain information and has concluded for reasons given in a judgment that it does, section 53 cannot be invoked effectively to overrule that judgment merely because a member of the executive, considering the same facts and arguments, takes a different view."

First, in my judgment, the position on the facts is different in the present case. The First-tier Tribunal did not, in fact, specifically consider the question of whether or not bail should be subject to a curfew condition. The defendant did not request such a condition (because she believed, erroneously, that if a condition requiring electronic monitoring was imposed, a curfew would follow or would be a restriction that the defendant could impose). The First-tier Tribunal did not therefore hear argument or make any findings of fact or reach any conclusion on the necessity for a curfew condition in the present case.

Secondly, the overall structure governing the grant of bail does recognise that the defendant will have a role in relation to conditions even if the First-tier Tribunal determines that the claimant should be released on bail. The conditions will, generally, require the claimant to surrender himself at a reporting centre at a particular time. That will bring the grant of bail by the First-tier Tribunal to an end. The defendant's officials will then determine whether to continue the conditions of bail, or to vary or discharge any of the conditions: see R (AR (Pakistan)) v Secretary of State [2017] 1 WLR 255 at paragraphs 27 to 28. Indeed, the Court of Appeal recognises in that case that the Secretary of State may impose conditions not imposed by the First-tier Tribunal if that were justifiable: see paragraph 28 of the judgment.

In the circumstances of this case, therefore, the First-tier Tribunal did not address the question of whether there should be a curfew. The decision of the defendant to grant bail subject to such a curfew would not, therefore, directly contradict or run counter to any finding or decision made by the First-tier Tribunal. The reasons why the defendant did not seek a curfew condition arose out of the view that she, erroneously, took as to her powers to impose a curfew if bail were granted. That view was shared, in part, by the High Court as Edis J. in Gedi held that a curfew was not the automatic consequence of the imposition of a condition to comply with electronic monitoring but that the defendant did have power to impose such a restriction under paragraph 2(5) of Schedule 3 to the Act. It was the decision of the Court of Appeal which established that a curfew condition could only be imposed as a condition of bail. In these circumstances, it is not appropriate, in my judgment, to characterise the situation, as the claimant does, as one where the defendant chose not to seek a condition, or where it was incumbent upon the defendant to identify any condition that she may wish to impose and request the First-tier Tribunal to impose that condition, so that any subsequent imposition of a curfew by her should be seen as circumventing the tribunal process.

In this situation, therefore, the decision of the defendant to impose a curfew condition would not, of itself, involve any action which amounted to an abuse of power or involve any departure from the decision of the First-tier Tribunal in a way which was unlawful or unreasonable as a matter of public law.

Similarly, in my judgment, the decision to detain the claimant in order to release him on bail but subject to a curfew condition would not, on the facts of this case, involve an unlawful departure from the decision of the First-tier Tribunal. The defendant was not seeking to contradict the decision of the First-tier Tribunal that the claimant could be released, on appropriate conditions, from detention. The difficulty was that the conditions considered necessary to ensure that release from detention was appropriate were not fully canvassed in the First-tier Tribunal for the reasons explained above. The defendant considered that the appropriate conditions included a curfew. Once the Court of Appeal decided that a curfew could only be imposed as a condition of bail, the only means by which the defendant could impose such a condition would be to detain the claimant and then release him on bail with the appropriate condition attached. The situation was unusual and resulted from a misunderstanding of the powers of the defendant in relation to bail. The steps adopted by the defendant were intended to rectify the situation and lead to a situation where the claimant was released but on conditions considered by the defendant to be appropriate. That did not, in my judgment, involve a situation where the defendant was seeking to question or depart from the decision of the First-tier Tribunal on the matters which it specifically addressed and would not, on this ground, give rise to any public law illegality.

THE SECOND ISSUE – THE SCOPE OF PARAGRAPH 22

The claimant contends that the power to impose a curfew as a condition of bail could only be exercised where such a condition was considered likely to reduce the risk of the bailed person absconding. The claimant refers to the wording of paragraph 22(2) of Schedule 2 to the Act which refers to conditions "appearing to be likely to result in the appearance of the person bailed at the required time and place". Implicit in that argument is the submission that if the purpose of the defendant in the present case was to impose a curfew condition to reduce the risk of him re-offending whilst released from detention, that would not be a permissible use of the power.

Paragraph 22(2) of Schedule 2 to the Act provides that conditions of bail "may include" conditions considered likely to result in the bailed person appearing at the required time and place. The wording of the paragraph itself, therefore, contemplates that other conditions may be included. The question, in my judgment, is how to determine what other conditions may be included. That is to be answered by considering the statutory framework governing the decision to grant bail. In the present case, the defendant has a statutory power to decide to deport persons where she deems this to be conducive to the public good. In those circumstances, schedule 3 to the Act expressly empowers her to detain the individual concerned as part of the process of deportation. Where deportation is conducive to the public good because of the risk of re-offending, the conditions that may be attached to bail may be ones that may take account of, and address, the risk of re-offending.

That conclusion is consistent with the interpretation of the power to detain conferred by paragraph 2(2) of Schedule 2 to the Act, as appears from the following passage in the judgment of Lord Dyson in R (Lumba) v Secretary of State ex p. Home Department [2012] 2 A.C. 245:

"107 I have some difficulty in understanding why the risk of reoffending is a relevant factor in a case where there is a risk of absconding, but not otherwise. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. Toulson LJ said, at para 55:

"A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."

Para 78 of Keene LJ's judgment is to similar effect.

"108 I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in A's case to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in I's case at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is "an obviously relevant circumstance".

"109 But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his reoffending will impede his deportation."

For completeness, I note that that approach is also consistent with the decision of the Special Immigration Appeal Commission in G v Secretary of State for the Home Department, unreported, May 20, 2004. There, the defendant had power to detain a person who was reasonably believed to be a terrorist, as defined in the relevant statute, and whose presence was believed to be a risk to national security. The relevant statute applied the provisions of, amongst others, paragraph 22 of Schedule 2 to the Act. The Commission in that case considered that the power to grant bail was to be interpreted as including power to attach conditions intended to ensure so far as possible that the person could not act in a way which was a danger to national security. In that case, therefore, "conditions to ensure attendance were not all that were needed and conditions to seek to avoid any further activities damaging the security of the State are required" (see paragraph 25 of the judgment of the tribunal).

In the circumstances, therefore, the conditions that may be included on a grant of bail under paragraph 22 of Schedule 2 to the Act may be addressed to the aim of ensuring that the person surrenders to bail. A risk of re-offending may be a relevant consideration to that if there is a risk that the person would abscond to evade arrest. Where the person is being deported because deportation is conducive to the public good because of his criminal convictions and the likelihood of further re-offending, the conditions that may be included on any grant of bail may also, in any event, include conditions, such as a curfew condition, intended to reduce the risk of re-offending.

THE THIRD ISSUE – THE UNPUBLISHED POLICY AND PROCEDURAL FAIRNESS

The Unpublished Policy

On the evidence before me, it is clear that the decision to detain the claimant and release him on bail subject to a curfew condition was materially influenced by the instruction of 12 August 2016 and the policy attached to those instructions. Mr Baker, who undertook an initial or threshold review of the claimant's case expressly accepts that he took into account the unpublished policy. That policy indicates, in effect, that a curfew condition is appropriate and should be sought in relation to certain types of crime, including kidnapping. Mr Baker explains in his witness statements that he considered the claimant's offence of false imprisonment to be sufficiently akin to kidnapping (albeit that the claimant did not himself take the victim off the streets) as to make a curfew condition potentially appropriate and he therefore passed the case to the case work team. There is no evidence of what factors the case worker took into account but the inference is that the case worker did have regard to the unpublished policy. The instruction was addressed, at least in part, to the review of cases such as the claimant's whose curfew had been lifted, as it had been imposed unlawfully, and where it was considered necessary to review his case. It is a natural inference that the case worker would have had regard to the unpublished policy indicating which types of offence were so serious that a curfew condition was thought appropriate.

The law governing the application of unpublished policies was considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245. That case concerned the power of the defendant to detain foreign national offenders. A published policy indicated that there was a presumption in favour of release from detention. In fact, the defendant applied an unpublished policy which provided, in effect, that there was a presumption in favour of detention unless there were exceptional circumstances. Lord Dyson JSC first considered the position where, as in that case, the Secretary of State applied an unpublished policy which was inconsistent with the published policy (see paragraphs 20 and 26 of his judgment). Lord Dyson then considered whether a policy which is relevant to the exercise of a discretionary power was required to be published. At paragraphs 35 and 36, Lord Dyson observed that:

"35 The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay [2985] AC 318, 338 e. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it…...

"36 Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision. I would endorse the statement made by Stanley Burnton J in R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 at [52] that "it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute…..".