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

A declaration is discretionary and should identify an established legal or factual position that serves a useful purpose. It should not be granted where the proposed declaration is factually inaccurate or cannot assist in resolving the remaining claim.

A High Court judge will generally follow a decision of another High Court judge on a point of law unless convinced that it is wrong or a powerful reason justifies departure. A requirement to remain at a specified address for specified hours, backed by criminal sanctions and electronic monitoring, may constitute detention for the factual element of false imprisonment, even though there is no physical barrier to leaving.

The claimant challenged curfew restrictions imposed under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The restrictions required him to remain at a specified address for eight hours each night and were backed by criminal sanctions and electronic monitoring.

The Court of Appeal had held in R (Gedi) v Secretary of State for the Home Department that paragraph 2(5) did not authorise such a curfew. The claimant sought a declaration that his curfew had been unlawful and argued that its imposition constituted detention for false imprisonment. The court had to decide whether to grant the declaration and whether the restriction satisfied the factual element of that tort.

1. The declaration sought was refused. The court had power to grant declaratory relief under CPR 40.20, but the remedy was discretionary. The proposed declaration identified dates on which the curfew was not in fact continuously imposed, and the relevant facts had not been established. It would therefore have been factually wrong and would serve no useful purpose. The remaining damages claims could be determined at a trial on the facts.

2. A High Court decision is not technically binding on another High Court judge. Nevertheless, the ordinary principle is that a decision of a court of co-ordinate jurisdiction should be followed unless the later judge is convinced that it is wrong or a powerful reason justifies departure.

3. The court followed the reasoning of Edis J in R (Gedi) v Secretary of State for the Home Department. A restriction requiring a person liable to detention to remain at a specified address for eight hours each day, where breach without reasonable excuse was a criminal offence and the restriction was reinforced by electronic monitoring, constituted detention for the purposes of the common law tort of false imprisonment.

4. The absence of a physical barrier did not determine the issue. The statutory context, criminal consequences of non-compliance and monitoring distinguished the case from authorities involving voluntary attendance or an ability to leave through an alternative route. The court did not finally resolve whether other forms of legal restraint, including bail with a curfew, would constitute detention.

5. The concept of detention for false imprisonment was distinct from deprivation of liberty under article 5 of the European Convention on Human Rights. The damages and misfeasance claims were to proceed to a hearing at which all relevant facts and issues could be determined together.

The judgment describes earlier procedural steps but is a first-instance decision. The First-tier Tribunal granted immigration bail in October 2013. Interim relief was later granted by Collins J on 14 July 2016, lifting the curfew. The remaining claims were directed to a further hearing.