Gedi, R (On the Application Of) v Secretary of State for Home Department [2016] EWCA Civ 409 (17 May 2016) is a case where the Home Office took it into their own hands to impose curfew restrictions over and above bail conditions those imposed by the First Tier Tribunal, as well as those they are entitled to impose as afforded to the Home Office by statute. The Court of Appeal were clear they had no such power to do so.

The appellant is an Somali national who came to the UK in 1998, aged 8, with his family. He was granted ILR but never got round to applying for British citizenship. In 2010, he got convicted for three offences of GBH, one of GBH with intent, as well as dangerous driving and received a 6 1/2 year custodial sentence. As a result of the conviction, the SSHD detained the appellant when released under licence pending possible deportation. He came before the First Tier Tribunal in April 2013 and was granted bail, along with conditions of residence, reporting to the UK border agency, as well as co operation with electronic tagging. There was a delay and the appellant wasn’t released for a week. On being released, Serco, acting as contractor for the UKBA, imposed residence conditions as well as a curfew between 6pm and 10pm pm each evening. However the Court of Appeal concluded that there was no lawful basis for the curfew to be imposed.

The SSHD decided to deport the appellant on 3rd May 2013, and the appellant surrendered himself to the Chief Immigration Officer (CIO) on 20th May 2013. The CIO in turn imposed bail conditions on the appellant as per those originally imposed by the FTT (residence and reporting). Further, the curfew conditions continued although it is not known if initially the CIO was continuing with the original curfew conditions, or re imposing them afresh, but they continued nonetheless. Between December 2013 and March 2015, the appellant was written to by the SSHD threatening criminal sanctions for breach of the curfew conditions.

Meanwhile, the appellant successfully appealed his deportation order at the FTT, with the FTT concluding that the appellant would be in danger if returned to Somalia. The SSHD unsuccessfully appealed the decision in the Upper Tribunal. However the SSHD continued to impose curfew conditions after the appeal process was exhausted by the SSHD in August 2014.

Then in December 2014, the SSHD made a new decision to deport the appellant, on the basis that he remained a danger to the community, thereby excluding him from the protection afforded by the Refugee Convention. He was informed that he was still liable for deportation, with curfew and reporting conditions remaining in place, but his indefinite leave to remain would be retained.

The judge at first instance, Edis J, decided that the SSHD and CIO’s in principal have the power to impose curfew on a foreign criminal awaiting deportation under paragraph 22(2) of schedule 2 of the Immigration Act 1971 as well as under paragraph 2(5) of schedule 3. However he concluded, in light of the SSHD concession, that once the appellant’s successful appeal against the deportation order was finalised in August 2014, any curfew imposed on the appellant amounted to the tort of false imprisonment.

The Court of Appeal concluded that as there had been no condition of curfew attached to the FTT’s conditions of bail, it was therefore unlawful, and that Edis J was wrong to conclude that the power afforded to the SSHD to impose condition of residence, included the power to impose a curfew.

As stated by Sir Brian Leveson (President) and Lord Justice Grosse

[ 35] For our part, we simply do not accept that a right to impose a “restriction as to residence” under paragraph 2(5) of Schedule 3 to the 1971 Act necessarily incorporates a right to impose a curfew. Mr Tam agrees that the words of the 1971 Act refer to bail conditions that are aimed at securing the appearance of the individual at a specified time and place and the residence requirement provides a mechanism for a degree of oversight. Thus, whether by electronic monitoring or by door-step visit, the authorities can be satisfied that oversight of the whereabouts of those subject to such a restriction is maintained. The requirement, however, imposes a specific level of restriction on what those subject to it can do: it is neither more nor less than that they must reside at the specified address. Different people will reside where they live, however, in different ways. Ignoring employment commitments (on the basis that those liable to be detained are not allowed to work unless explicitly granted permission to do so), although many will want to sleep at night, others may well want to visit friends until the late hours and sleep during parts of the day. Both will be residing at the address at which they sleep.

[36] In addition, this curfew (at least in its initial period) was not being used to provide specificity to the residence requirement and did not, in reality, support that requirement at all. The hours which, on any showing, it is common ground were imposed in April 2013 were between 18.00 and 22.00. Very many people will want to be out and about during the evening (rather than at home) and it is absurd to say that if an individual is absent from where he lives and sleeps between these hours, it means that he does not reside there.

[37] Furthermore, it is important to underline the need for the clearest legislative authority for a requirement of this nature. As the appellant was repeatedly reminded, failure to observe any restriction imposed on him under Schedule 2 or 3 to the 1971 Act as to residence, employment or occupation constitutes a criminal offence. Even assuming a curfew requirement of, say, 02:00 to 05:00 (when most people would be in bed), returning after 02:00 would not, of itself, lead to the conclusion that the individual concerned no longer resided at the address identified. Electronic monitoring might provide evidence sufficient to justify the inference of non-residence (as would other evidence of change of residence) but not being present between 00:00 and 02:12 (to take the example of the breach letter of 21 December 2013) does not justify the threat that “failing to be present as required” creates a liability to prosecution under s. 24(1)(e) of the 1971 Act.

It is interesting to note that the issue of bail, and the authority to impose conditions was considered in the recent case of Raza, R (on the application of) v Secretary of State for the Home Department (Bail – conditions – variation – Article 9 ECHR) (IJR) [2016] UKUT 132 (IAC), where the Upper Tribunal issued bail guidance for judges of the AIT, including a conclusion that the First Tier Tribunal retains exclusive power to vary any of its bail orders during their lifespan. The Chief Immigration Officer has no power to interfere with such orders or make any other order in such circumstances.

The guidance also concludes that a curfew will not normally constitute a disproportionate interference so as to infringe so as to infringe Article 9 ECHR, Article 10 of the Fundamental rights Charter of the Equality Act 2010. I wonder whether Sir Brian Leveson and his colleagues at the Court of Appeal would agree ?