The Queen (on the application of Abdiweli Gedi) v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice Gross,Lady Justice Black |
| Judgment Date | 17 May 2016 |
| Neutral Citation | [2016] EWCA Civ 409 |
| Docket Number | Case No: C4/2015/3630 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2016 |
[2016] EWCA Civ 409
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lady Justice Black
and
Lord Justice Gross
Case No: C4/2015/3630
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Edis
CO/2668/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Hickman (instructed by Ravi Naik of Irvine Thanvi Natas) for the Appellant
Robin Tam Q.C. and Carine Patry (instructed by Government Legal Department) for the Secretary of State for the Home Department
Hearing date: 2 March 2016
Sir Brian Leveson P and
This case concerns the power of the Secretary of State for the Home Department ("SSHD") and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion of deportation proceedings. This turns entirely on the terms of the legislation but there are subsidiary issues relevant to this particular case both in relation to the adequacy of the evidence as to who made what decisions and (given the concession now made that the legislation originally claimed to confer the power did not do so) whether it was open to the court to conclude that the restrictions could be justified under different legislative provisions.
Before Edis J, the imposition and authority to impose restrictions upon Abdeweli Gedi ("the appellant") were considered in relation to four separate periods of time. These were (1) 25 April to 20 May 2013, (2) 20 May 2013 to 18 August 2014, (3) 18 August to 9 December 2014 and (4) from 10 December 2014. He found that the relevant restrictions were lawfully imposed in the first, second and fourth of these periods but directed an assessment of damages for false imprisonment (consequent upon an unlawful requirement to comply with a combination of curfew and electronic monitoring) in relation to the third period: see [2015] EWHC 2786 (Admin). With the leave of the judge, the appellant appeals the conclusions and reasoning which led to the adverse decisions in relation to the other three periods.
The Facts
The appellant is a Somali national who arrived in the United Kingdom on 29 June 1998 at the age of eight with his family. He was subsequently given indefinite leave to remain but has never applied for British citizenship. On 25 May 2010, he was convicted of three offences of attempting to cause grievous bodily harm, one offence of causing grievous bodily harm with intent, and one offence of dangerous driving. These convictions arose out of an incident where he left a nightclub in the early hours of the morning and drove a Range Rover at three people, trying but failing to do them serious harm. He drove away, but soon returned, where he this time succeeded in causing a fourth man serious harm. On 18 June 2010, notwithstanding his youth and prior good character, he was sentenced to a total of 6 1/2 years' detention in a young offenders' institution.
While that sentence was being served, the question whether the SSHD should deport the appellant as a foreign criminal pursuant to the powers contained in s. 32(5) of the UK Border Act 2007 ("2007 Act") fell to be considered. In these circumstances, she exercised her power under s. 36(1) of the 2007 Act to detain the appellant on his release on licence on 1 February 2013.
On 18 April 2013, the appellant appeared before the First Tier Tribunal ("FTT") and was granted bail. The appellant entered a recognisance in the sum of £10 and his mother and uncle entered sureties together amounting to £3,800. These sureties would be forfeited if the appellant failed to comply with the primary condition of bail, which was to appear before a Chief Immigration Officer ("CIO") at Becket House Immigration Office, London on 20 May 2013 at 10:00 am. The document signed by the FTT judge recording the grant of bail further provided for secondary conditions:
"1. The applicant shall live and sleep every night at an address specified in Rotherhithe.
2. The applicant shall report to the UK Border Agency [at Beckett House, London, every Monday between the hours of 10am and 4pm from Monday 22 April 2013 onwards]
3. Bail is granted subject to (i) the applicant cooperating with the arrangement for electronic monitoring ("tagging") as set out in section 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 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."
In the event, there was a delay and the appellant was not released until 25 April 2013. That same day, in an electronic monitoring commencement form, the UK Border Agency Case Owner requested that the contractor, Serco:
"… arrange for the supply of the appropriate monitoring equipment and induction of [the appellant] between the hours of {18.00pm} and {22.00pm} on {Thursday 25 April 2013}…
Requirements
• [The appellant] must reside at the address specified in Rotherhithe.
• He must be at this address between the hours of {18.00pm} and {22.00pm} every {day}, until further notice."
The UK Border Agency further produced a form IS.96 (Tag and Track) on 25 April 2013 addressed to the appellant, which among other things set out the same requirements. Tagging was carried out on 26 April 2013 and, as such, not within two working days of the grant of bail. In keeping with the electronic monitoring commencement and IS.96 (Tag and Track) forms, it is the appellant's evidence that on that same occasion Serco informed him that the SSHD had imposed a curfew between 18:00 and 22:00. His statement also asserts that, contrary to the forms, Serco also informed him that he was also subject to a morning curfew between 06:00 and 08:00. Further, he could not remember whether Serco had given him a letter but assumed that they did. It is likely that this would have been the IS.96 (Tag and Track) form which is, after all, addressed to him.
Both in the summary grounds of resistance and in the skeleton argument submitted on behalf of the SSHD, it was admitted that a curfew was also imposed between 06:00 and 08:00 although the factual evidential basis for that admission is not disclosed. Given that such a curfew is contradicted by the contemporaneous documentation, we are surprised by it as, it appears, was Edis J (who summarised the curfew at [5] as "between 18:00 and 22:00 and, perhaps, 06:00 and 08:00"): notwithstanding the concession, this does not appear to be a finding on the balance of probability but, given that this was not the subject of specific argument, we say no more about it. To such extent as it becomes relevant, namely in determining damages for the tort of false imprisonment, whether the SSHD can resile from the formulation of its position and the effect of the judgment will have to be determined by argument directed to the issue and, potentially, oral evidence.
What is, however, clear is that the electronic monitoring commencement form and form IS.96 (Tag and Track) communicated to Serco and the appellant respectively show the Home Office operating as if a curfew had been imposed: that does not, however, amount to a clear demonstration that a relevant decision lawfully to impose a curfew was ever taken. As Mr Tam conceded, documentation which identifies restrictions affecting the liberty of the subject is important to demonstrate compliance with the rule of law and its absence is highly unsatisfactory. Without some evidence of by whom and in what circumstances the direction was given to Serco, we see no basis for concluding that there was, in fact, a decision under a specific statutory power to impose a curfew. Thus, although the SSHD communicated a curfew and required the appellant to comply with this direction, we are not satisfied that a lawful basis for this requirement has been established.
On 3 May 2013, the SSHD made an order to deport the appellant pursuant to s. 32(5) of the 2007 Act. She considered that none of the s. 33 exceptions to automatic deportation applied. On 20 May 2013, the appellant surrendered himself to the CIO, complying with the primary bail condition imposed by the FTT. This brought to an end the bail granted by the FTT. At the appearance, the CIO granted bail on the condition that the appellant appear before an immigration officer at Beckett House on 4 November 2013. The residence condition remained that the appellant was to reside at the Rotherhithe address and the reporting condition was altered so that the appellant was to appear at Beckett House on Mondays between 09:00 and 11:30. The appellant's recognisance and his mother and uncle's sureties remained constant.
Beyond these decisions, the documents submitted as part of these proceedings do not reveal whether the CIO continued the tagging condition or whether he took any action with regard to the appellant's curfew. However, again, Edis J was prepared to assume (at [8.ii] and [53] of his judgment) that the CIO was continuing the SSHD's initial curfew or imposing a curfew afresh. This piles a further assumption on the initial assumption and, again, we see no justification for either.
The appellant applied to the FTT for a variation of his curfew and, on 24 October 2013, the FTT declined jurisdiction on the ground that, with effect from 20 May...
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