In R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409 the Court of Appeal reversed a High Court decision that the words “restriction as to residence” in paragraph 2(5) of Schedule 3 to the Immigration Act 1971 empowered the Secretary of State to impose a curfew on people released from immigration detention.

In that case the Home Office had sought to argue that, although there was no lawful basis for its imposition, those who had been unlawfully subject to curfew could not sue for false imprisonment. Procedural irregularities prevented the Secretary of State from arguing the issue at the time.

In the recently reported case of R (Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260, the Secretary of State got another bite at the cherry.

Straw grasping

The nub of the Secretary of State’s case was that a curfew amounted to voluntary compliance with a request to remain in a particular physical place. The person under curfew was able to leave that place, meaning that it could not be “imprisonment” for the purposes of a damages claim.

The fact that a person would be immediately detained if he or she actually sought to leave, argued counsel, was neither here nor there: the fact that they could meant that there was no “imprisonment”, even if use of the route out involved unlawfulness.

The reluctance with which the Court of Appeal cited the various authorities relied upon by counsel is a mark of the enthusiasm with which it greeted these arguments:

Because the arguments of counsel – in particular, those on behalf of the Secretary of State – were so closely linked to the authorities it is, unfortunately, necessary to deal with them in some detail.

Nevertheless, and in deference to counsel for the Secretary of State, Lord Justice Davis treats readers of Jollah to a guided tour of a mainly 19th-century corpus of caselaw on the questions of constructive imprisonment and what it means to be free (see paragraphs 48-74).

In the end, there was little hesitation from the court in arriving at its firm conclusion that a curfew could clearly constitute “imprisonment”.

It is true that was there was no guard and that IJ was not locked in. But, as is evident from the judge’s findings, IJ was, in remaining in his house during the curfew hours, operating under constraint. He would not always have so acted were it not for the Notice of Restriction, backed as it was by the threat of criminal sanction and by electronic tagging.

The fact that it had been imposed unlawfully meant that it was “false”, and a cause of action in false imprisonment did therefore lie.

Calculation of damages

In the instant case, Mr Jollah had been subject to unlawful curfew between 23.00-07.00 every day for two and a half years. In the High Court proceedings below, he had been awarded a total sum of £4,000 — see Nath’s post for more on the first instance decision. He cross-appealed, arguing that the amount was too low.

The Court of Appeal did not agree, and reminded Mr Jollah that it would only interfere if the decision were plainly wrong. The court found it was not.

It should also be borne in mind that Mr Jollah, perhaps with a more developed understanding of the legality of his imprisonment than those ordering it, broke the terms of his curfew on a substantial number of occasions. Davis LJ observed, strictly obiter, that this may have been a factor in the decision to award a lower level of damages than might otherwise have been the case.

This may have been a relief to the Home Office in the instant case, but there is likely to be concern about the amount this error of law will cost them down the track, especially given the numbers likely to have been made subject to curfew under this schedule.

And practitioners should be aware that clients who have been subject to curfew following release from detention in the last few years may have a claim for false imprisonment.