Drawing a (Not-So-Bright) Line under Control Order Liberty Challenges

DOI10.1350/jcla.2010.74.5.655
Date01 October 2010
AuthorBen Middleton
Publication Date01 October 2010
SubjectSupreme Court
Supreme Court
Drawing a (Not-So-Bright) Line under Control Order
Liberty Challenges
Secretary of State for the Home Department v AP [2010] UKSC 24
Keywords Terrorism; Control orders; Conditions; Right to liberty and
security; Right to respect for private and family life
The appellant, AP, was an Ethiopian national who arrived in the UK in
1992 at the age of 14. On 6 October 1999 he was granted indefinite leave
to remain in the UK, along with others in his family. In May 2005 he
travelled to Somalia and Ethiopia and was detained by Ethiopian
authorities on 22 December 2006, at which point the Secretary of State
decided to exclude him from the UK since he was suspected of involve-
ment in terrorism. AP returned to the UK on 28 December 2006 and was
refused leave to enter and was detained, pending deportation, under
immigration powers, before being released on bail with strict
conditions.
On 10 January 2008, the Secretary of State was granted permission to
make a control order against AP and therefore the decision to remove
AP was withdrawn. The control order contained a variety of obligations,
including inter alia a 16-hour curfew, electronic tag, and a requirement
to reside in North London. On 21 April 2008, the Home Secretary
modified AP’s control order, requiring him to move to 150 miles away to
an address in the Midlands. As a result of the move, his family encoun-
tered practical difficulties visiting him and his mother was unable to do
so. AP appealed against this modification, and the requirement to move
was quashed by Keith J in the High Court ([2008] EWHC 2001). Keith
J held that the interference with AP’s family life under Article 8 ECHR
was justified and proportionate in the interests of national security, but
that the cumulative effect of a 16-hour curfew and social isolation
constituted a deprivation of liberty under Article 5 ECHR. The Court of
Appeal by a 2:1 majority allowed the Secretary of State’s appeal on 15
July 2009. On 2 July 2009 the Home Secretary had revoked AP’s control
order since she had decided that AP should once again be deported on
national security grounds. AP was released on bail pending deportation,
to which strict conditions were attached, and therefore would not be
affected by an appeal. The Supreme Court nonetheless gave leave to
appeal inter alia on two issues of general importance:
1.1. Whether conditions which are proportionate restrictions upon
Article 8 rights to respect for private and family life can ‘tip the
balance’ in relation to Article 5 (which guarantees the right to
liberty and security)
2.2. Whether the judge can take into account subjective and/or
person-specific factors, such as the particular difficulties of the
subject’s family in visiting him in a particular location, when
405The Journal of Criminal Law (2010) 74 JCL 405–408
doi:10.1350/jcla.2010.74.5.655

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