Gedi, R (On the Application Of) v Secretary of State for Home Department

A statutory power to impose a restriction as to residence on a person liable to immigration detention does not authorise a curfew. Residence and compulsory presence at specified hours are materially different restrictions. Clear legislative authority is required where breach may attract criminal liability.

Nor does a power to require cooperation with electronic monitoring authorise a curfew. Monitoring may detect presence or absence, but it does not itself require presence. A curfew cannot be validated merely because another statutory power might have permitted the appropriate authority to impose one. The evidence must establish that the authority actually exercised that power.

The appellant, a Somali national facing deportation following criminal convictions, was released from immigration detention and subjected to electronic monitoring and a curfew. Different bail and deportation regimes applied during four successive periods.

Edis J held that the restrictions were lawful during the first, second and fourth periods, but awarded damages for false imprisonment in respect of the third: [2015] EWHC 2786 (Admin). The appellant challenged the adverse conclusions.

The central issues were whether a curfew was authorised by section 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, paragraph 2(5) of Schedule 3 to the Immigration Act 1971, or the bail power in paragraph 22(2) of Schedule 2; and whether the evidence established that an authorised decision-maker had imposed it.

1. Appeal allowed. The curfew lacked statutory justification throughout the period in which it was imposed. The evidence also failed to establish that the First-tier Tribunal, a chief immigration officer or the Secretary of State had made a lawful decision under an identified statutory power to impose it.

2. Paragraph 2(5) of Schedule 3 to the Immigration Act 1971 authorises restrictions as to residence, employment or occupation, and reporting. A restriction as to residence does not include a curfew. A person may reside at an address while being absent during specified evening or night-time hours. A compulsory-presence requirement therefore imposes a distinct restriction upon liberty rather than greater specificity concerning residence.

3. Clear legislative authority was especially important because failure to comply with a Schedule 2 or Schedule 3 restriction could constitute an offence under section 24(1)(e) of the Immigration Act 1971. The statutory purposes of detention could not justify extending the language governing permissible bail conditions or residence restrictions beyond its proper scope.

4. Section 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 authorised a requirement to cooperate with electronic monitoring. It did not authorise a curfew. Monitoring could record whether the appellant was present or absent, but absence did not itself constitute a failure to cooperate with monitoring.

5. Whether paragraph 22(2) of Schedule 2 to the Immigration Act 1971 could authorise an appropriately imposed curfew did not require decision. No curfew had in fact been imposed as a condition of bail by the First-tier Tribunal or a chief immigration officer. The possible existence of an unexercised power could not validate the restriction actually communicated and enforced.

6. The Secretary of State could not challenge the finding of false imprisonment without a cross-appeal or respondent’s notice. A submission in a skeleton argument did not cure that procedural failure. The court therefore preserved the finding for the third period and its consequence for the remaining periods, while emphasising that the judgment was not authority that every unlawful curfew necessarily constitutes false imprisonment.

• Court of Appeal (Civil Division): The appeal was allowed. The court held that the curfew was unsupported by the relied-upon statutory provisions and had not been shown to have been imposed under a lawful bail power: [2016] EWCA Civ 409.
• High Court, Administrative Court: Edis J held the restrictions lawful during the first, second and fourth periods, but directed an assessment of damages for false imprisonment during the third period: [2015] EWHC 2786 (Admin).