Both R (Jollah) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) and R (Lupepe) v SSHD [2017] EWHC 2690 (Admin) were heard on 11, 12 and 13 October 2017 by Mr Justice Lewis. It makes sense to look at them together because they both follow up on R (Gedi) v SSHD [2016] EWCA Civ 409, which challenged the Home Office’s power to impose a curfew on people released from immigration detention.

In particular, the Gedi case confirmed that paragraph 2(5) of Schedule 3 to the Immigration Act 1971, which gave power to the Secretary of State to “impose restrictions on residence”, did not extend to a power to impose a curfew over and above conditions on bail. Instead, the Court of Appeal found that any curfew had to be imposed as a condition of bail, which they often were not.

The decision in Gedi meant that a large number of immigration curfews had been imposed unlawfully. Jollah and Lupepe are two examples of the consequences. Jollah concerns damages for false imprisonment; Lupepe shows how the Secretary of State continued to try imposing curfews even after Gedi, but did so unlawfully.

Unlawful curfew

Both Mr Jollah and Mr Lupepe were required by the Secretary of State to be present at their residential addresses overnight, every night.

Mr Jollah’s curfew was imposed on 3 February 2014 and lifted on 14 July 2016. Mr Lupepe was given curfews on three occasions between 2012 and the present.

Mr Jollah’s curfew and the first two of Mr Lupepe’s curfews were imposed pursuant to paragraph 2(5) of Schedule 3 to the 1971 Act, so that, following Gedi, the Secretary of State accepted that they were unlawful.

Lupepe: the unlawfulness of an using an unpublished policy

The Secretary of State, having realised that Mr Lupepe’s previous curfews had been imposed unlawfully, found a new mechanism. On 8 November 2016, when Mr Lupepe went to report, he was handed him a letter detaining him nominally for a very short time and releasing him with new bail conditions which included a requirement to be present at his residential address between 23.00 and 6.00 every day. This curfew, which continued until the date of the hearing, was imposed pursuant to paragraph 22 of Schedule 2 to the Immigration Act 1971.

Lewis J found that, where there is a risk of a person absconding to evade arrest, this paragraph allowed the Secretary of State to impose conditions on bail which may include conditions such as a curfew condition intended to reduce the risk of re-offending.

However, the curfew was found to be unlawful because the Secretary of State applied an unpublished policy in deciding to impose it and did not give Mr Lupepe the opportunity to make representations as to why a curfew was not appropriate.

An unpublished policy of 12 August 2016 instructed caseworkers to impose a curfew condition for certain types of crime, including kidnapping. The caseworker had considered Mr Lupepe’s offence of false imprisonment to be “sufficiently akin to kidnapping” to make a curfew condition appropriate.

Citing R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, Lewis J found that what must be published

is that which a person who is affected by a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.

In the present case, material parts of the policy guidance applied in reviewing the curfew were not publicly available.

The decision to impose the curfew was also unlawful because

The claimant was not given the opportunity at any stage to indicate why a curfew was not necessary or appropriate in his case.

The curfew was quashed.

A hearing for damages for false imprisonment was adjourned but the case of Jollah may give us some indication as to how it will be dealt with.

Jollah: damages for false imprisonment

Lewis J had previously found that the imposition of a curfew on Mr Jollah, reinforced by the threat of criminal sanctions and electronic monitoring, amounted to a detention for the purposes of the tort of false imprisonment.

The judge confirmed that the tort of false imprisonment is compensated such as to put the claimant in the position that he would have been in had the tort not been committed. In other words, if the claimant would have been in the same position even if the tort had not been committed, he would be entitled to nominal damages only. Otherwise, he would be entitled to compensatory damages.

Mr Jollah would not have been detained otherwise (because the detention had been unlawful) and therefore was entitled to compensatory damages.

To decide of the amount of damages, the judge took into account that:

• the claimant was detained at his own residential address (rather than in prison or in an immigration detention centre)
• he was not subject to restraint for large parts of each day
• there was no “initial shock” at the fact of detention
• the curfew did not prevent him from carrying out his religious observance or attending family court proceedings (even though that meant he did not comply with the curfew in force)

The curfew did, however:

• restrict his activities so that he could not attend community gatherings and parties
• made him worried about the effect of coming back home late or being absent during curfew
• contributed, albeit to a limited degree, to the depression he was suffering

The amount of compensatory damages was set at £4,000. There were no aggravating features.

Of course, the amount of damages to which claimants may be entitled will depend on the specific facts of each case. However, Jollah gives an indication as to what factors judges will take into account when determining false imprisonment claims.

Many individuals will have been falsely imprisoned by the Secretary of State prior to and after Gedi, and I would encourage them to seek legal advice as to whether they have a claim for damages. Claimants have up to six years within which to bring a false imprisonment claim.