R Abdiwell Gedi v Secretary of State for the Home Department (SSHD)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edis |
| Judgment Date | 09 October 2015 |
| Neutral Citation | [2015] EWHC 2786 (Admin) |
| Date | 09 October 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2668/2015 |
[2015] EWHC 2786 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edis
Case No: CO/2668/2015
Tom Hickman (instructed by Irvine Thanvi Natas Solicitors) for the Claimant
Carine Patry (instructed by The Government Legal Department) for the SSHD
Hearing dates: 17 th September 2015
This application for Judicial Review is brought by leave of Mr. Justice Kerr granted after reconsideration of the papers on 3 rd August 2015. By the same order, he extended time pursuant to CPR 3.1(2)(a). In it, the claimant challenges the lawfulness of bail conditions (a curfew monitored by electronic tagging) imposed by the defendant during deportation proceedings under section 32(5) of the UK Borders Act 2007, "the 2007 Act". I shall refer to the defendant as the Secretary of State for the Home Department ("SSHD"). By doing so I do not mean that she has taken any part in any of these events personally. The deportation proceedings began with a notice of intention to deport in February 2013. At this time the claimant was serving a prison sentence. The custodial part of that sentence ended and he was detained thereafter under the Immigration Act 1971, "the 1971 Act". As will appear, he was later granted bail which resulted in his release on conditions attached to bail. The terms of the licence which applied during the second half of his custodial sentence also imposed restrictions on him during this period, and continue to do so. A deportation order was made on 3 rd May 2013. There was an appeal against that and those proceedings were pending until 18 th August 2014. Section 32(5) of the 2007 Act is the provision which requires the SSHD to deport foreign criminals unless she considers that certain exceptions apply. This claim further challenges the lawfulness of bail conditions (a curfew monitored by electronic tagging) imposed when the SSHD made a fresh deportation decision relying on a new assessment of conditions in the claimant's country of origin on 10 th December 2014. This claim does not concern the merits of the first set of proceedings and does not allege that the second decision was unlawful. The claimant does resist the new attempt to deport him, but not in this claim. The claim for judicial review is limited to the claim that the SSHD has no power to impose a curfew in circumstances such as the present. If there is such a power, it is not submitted that it was unreasonable for the SSHD to exercise it as she did. I shall use the term "curfew" although there is some controversy about it as I shall make clear below. By this term I mean a requirement that the person subject to it shall be present in identified premises (generally the place where the person is required to reside) at certain times (usually at night). A curfew imposed as a bail condition will often be subject to electronic monitoring, but may sometimes be subject to what is called a "doorstep condition" which requires the person to present themselves at the front door of the premises to a police or other officer to show that they are there. Sometimes curfews are imposed without any specified enforcement measures.
The main issue, therefore, is a pure point of law. Some account of the chronology is required in order to put the legal issue in its context. There are also some subsidiary issues which are more fact sensitive.
THE FACTS
The claimant is a Somalian national who came to the United Kingdom on 29 th June 1998 at the age of 8 with his mother and siblings. He was subsequently granted indefinite leave to remain but has never applied for British citizenship. On 25 th May 2010 he was convicted after a trial at the Central Criminal Court of 3 offences of attempting to cause grievous bodily harm, 1 offence of causing grievous bodily harm with intent, and 1 offence of dangerous driving. All the offences arose out of one incident when he participated in a very serious incident of public violence in the street, outside a club frequented by Somalians in London. In the early hours of the morning he left the club and drove a Range Rover at three people, trying but failing to do them really serious harm. He drove away but soon returned, this time succeeding in using the vehicle as a weapon to cause a fourth man really serious harm. On 18 th June 2010 he was sentenced to a total of 6 years and 6 months detention in a young offender institution. This sentence reflected his youth and the fact that until that time he had been a person of good character. The SSHD initiated the process of deportation while he was serving that sentence and, on his release on licence, he was detained under the Immigration Acts between the 1 st February 2013 and 25 th April 2013. On 18 th April 2013 he was granted bail by the First Tier Tribunal (FTT) but his release was delayed by an error. As required by the practice, the SSHD prepared a Bail Summary for that hearing. She opposed bail in that document, but contended that if bail was granted it should be conditional and requested an electronic monitoring condition. I shall call this "tagging" for the sake of brevity. The grant of bail appears in slightly different terms in different documents, but the document signed by the Judge and the claimant and his two sureties records that the claimant entered into a recognizance in the sum of £10 and that two people entered into sureties in more substantial sums which would be forfeited if the claimant failed to comply with the primary condition. The primary condition specified that the claimant must appear before a Chief Immigration Officer ("CIO") on 20 th May 2013 at 10:00am at a specified place. The secondary conditions were as follows:-
1. The applicant shall live and sleep every night at [a specified address].
2. The applicant shall report to the UK Border Agency every Monday at [given times].
3. Bail is granted subject to (i) the applicant cooperating with the arrangement for electronic monitoring ("tagging") as set out in s.36 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ["the 2004 Act"] and (ii) the UK Border Agency arranging electronic monitoring within two working days of this grant of bail. If electronic monitoring is not effected within two working days, then the applicant is to be released on condition that he/she complies with reporting conditions as stated above.
I have quoted paragraph 3 of the order granting conditional bail in full because an issue arises as to its construction. As is apparent from the use of the phrase "he/she" it is a standard form of order. This is confirmed by Guidance which I will further consider below.
By error, there was a delay in releasing the claimant and tagging was not arranged within two days of the grant of bail. He did not return home until 25 th April and tagging was arranged on the following day. On that same occasion he was informed that a curfew had been imposed under s. 36 of the 2004 Act between 18:00 and 22:00 and, perhaps, 06:00 and 08:00. This order is an unusual curfew because it allows the claimant to be away from his home between 22:00 and 06:00. The claimant is not allowed employment in this country because of his immigration status. Ms. Patry told me that the original order was designed to test whether the claimant was residing at the specified address as required. At all events the claimant applied for a variation of this arrangement to the FTT which declined jurisdiction on 24 th October 2013 saying that with effect from 20 th May 2013 the bail conditions had been the responsibility of the CIO to whom he had surrendered on that date. The claimant therefore communicated with the CIO and the curfew was varied to 00:00–06:00, which is perhaps a more conventional condition of bail. This happened in December 2013.
The deportation order was sent to the claimant on 3 rd May 2013. The SSHD was required to consider deportation and decided that the exceptions to automatic deportation consequent upon the conviction and sentence did not apply, having considered ss. 32(5) and 33 of the UK Border Act 2007. The claimant appealed successfully to the FTT which heard his case on 4 th March 2014. He succeeded on the ground that he would be in danger if he were returned to Somalia. The SSHD appealed unsuccessfully to the Upper Tribunal Immigration and Asylum Chamber (Upper Tribunal Judge Warr) who promulgated his determination on 1 st August 2014. The decision was sent to the SSHD's representative but was not, it seems, referred to the proper department for consideration of a further appeal. Eventually, an application for permission to appeal and an extension of time was made which was dismissed by Judge Warr on 3 rd November 2014. He held that no good reason for an extension of time had been shown and said that in any event he would not have granted permission of the application had been in time. That decision was sent on 11 th November 2014 and no further application was made by the SSHD to the Court of Appeal Civil Division within the 28 day period provided by CPR 52D PD 4.3.3 from that date. Time for that expired on 9 th December 2014. It is common ground that in correspondence between August and 9 th December 2014 the SSHD was informing the claimant of alleged breaches of the curfew and threatening sanctions in respect of those breaches. I set out an example of one of these letters below. The claimant was responding through his solicitors that there had never been any jurisdiction to impose a curfew...
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