Lupepe, R (on the application of) v Secretary of State for the Home Department

A curfew may be imposed as a condition of immigration bail where it is authorised by the statutory bail power. The power is not limited to conditions securing attendance: where deportation is pursued because the person’s presence is not conducive to the public good owing to criminality, a curfew may address the risk of re-offending.

A decision-maker must publish material policy criteria governing the exercise of the discretion. An affected person must also have a fair opportunity to make representations where a significant restriction is being newly imposed after an earlier unlawful restriction has been removed.

The claimant, a foreign national subject to a deportation order, challenged curfews imposed during three periods. The first two curfews were imposed under paragraph 2(5) of Schedule 3 to the Immigration Act 1971, which the defendant accepted did not confer power to impose a curfew following R (Gedi) v Secretary of State for the Home Department [2016] 4 W.L.R. 93.

In the third period, the claimant was briefly detained and released on immigration bail with a curfew condition. He challenged the power to impose that condition after the First-tier Tribunal had granted earlier bail without a curfew, the use of the condition to reduce re-offending, reliance on an unpublished policy, procedural fairness, and the lawfulness of the detention.

1. First two periods. The curfews imposed under paragraph 2(5) of Schedule 3 to the Immigration Act 1971 were unlawful because that provision did not authorise a curfew. The issue of damages was adjourned.
2. Power to impose the later curfew. The First-tier Tribunal had not considered or rejected a curfew condition. The defendant therefore did not unlawfully contradict or circumvent that tribunal’s decision by detaining the claimant briefly and releasing him on bail with a curfew. The statutory structure permits the defendant to determine whether to continue, vary or discharge bail conditions after surrender: see R (AR (Pakistan)) v Secretary of State for the Home Department [2017] 1 W.L.R. 255, paras 27–28.
3. Paragraph 22 of Schedule 2 to the Act permits conditions beyond those directed solely to securing attendance. In the context of deportation based on criminality, a curfew may be directed to reducing the risk of re-offending. The reasoning in R (Lumba) v Secretary of State for the Home Department [2012] 2 A.C. 245 supported that construction, and the approach was consistent with G v Secretary of State for the Home Department (unreported, 20 May 2004).
4. Unpublished policy. The decision was materially influenced by unpublished criteria identifying offences for which curfews should generally be sought and prescribing their duration. Under R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245, material policy criteria governing a statutory discretion must be published so that affected persons can make informed representations. The failure to publish the relevant policy rendered the decision unlawful.
5. Procedural fairness. The claimant was entitled to some opportunity to explain why a curfew was unnecessary or inappropriate. The process need not have been elaborate, but no opportunity was given. That independently rendered the decision unlawful.
6. Detention and final order. Brief detention for the purpose of granting bail with appropriate conditions was lawful on the facts. The chapter 55 detention guidance was not apt to apply, or any departure from it did not invalidate the detention. The curfew imposed on 8 November 2016 was nevertheless unlawful and was quashed.