The Queen (on the application of Ibrahima Jollah) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lewis |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 330 (Admin) |
| Docket Number | Case No: CO/3354/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2017 |
[2017] EWHC 330 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewis
Case No: CO/3354/2016
Tom Hickman and Jude Bunting (instructed by ITN Solicitors) for the Claimant
Robin Tam Q.C. and Mathew Gullick (instructed by Government Legal Department) for the Defendant
Hearing date: 14 February 2017
Approved Judgment
INTRODUCTION
This application concerns part of a claim for judicial review brought by the Claimant, Ibrahima Jollah, challenging what is described as a decision of 16 June 2016 to refuse to remove certain curfew conditions relating to the Claimant. In essence, underlying the claim is the ruling by the Court of Appeal in R (Gedi) Secretary of State for the Home Department [2016] 4 WLR 93 that the Secretary of State had no power, when imposing a restriction on residence pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 ("the Act") to impose a requirement that a person spend a particular number of hours each day in a particular location.
In the claim form, the Claimant sought an order quashing the curfew and declaring it to be unlawful, and damages for false imprisonment and misfeasance in a public office. In fact, interim relief was granted by Collins J. on 14 July 2016 and the Claimant was not subject to a curfew after that date. The Claimant continued to seek a declaration that:
"The curfew imposed on Mr Jollah on 30 October 2013 and maintained until it was lifted by order of Mr Justice Collins on 14 July 2016 was unlawful".
The Claimant also continues with his claim for false imprisonment and misfeasance. By order dated 3 February 2017, it was ordered, amongst other things, that there be a hearing to determine:
(1) Whether the court should make a declaration that the curfew challenged was unlawful;
(2) Whether the imposition of an unlawful curfew pursuant to paragraph 2(5) of Schedule 3 to the Immigration At 1971 ("the Act") constitutes a false imprisonment and whether R (Gedi) Secretary of State for the Home Department [2015] EWHC 2786 (Admin) should be followed on this issue.
The anticipation of the parties, it seems, was that the question of the quantum of any damages for false imprisonment (if the imposition of a curfew constituted the factual element of imprisonment necessary for that tort) and whether the tort of misfeasance had been committed (and if so, the quantum of damages) be dealt with at a later hearing.
It transpired that this approach to the litigation has not proved satisfactory. First, whether because of the way in which the litigation has been constructed, or for other reasons, the relevant facts in this case have not been established. That is relevant to the question of whether a declaration should be granted. Secondly, there will, in any event, need to be a further hearing to establish the relevant facts and to deal with the misfeasance claim and any assessment of damages. It would have been preferable, and would have been a better use of resources, to have had one hearing which would have dealt with all the relevant claims and found all the relevant facts necessary to resolve those claims.
THE FACTS
So far as can be gleaned from the claim form, witness statement and a bundle of documents provided by the Defendant, the factual position appears, at least in part, to be as follows. I am conscious that the true factual position may in fact be different and further facts may ultimately emerge at any hearing of the claim.
The Claimant says that he is a citizen of Liberia who was born on 15 December 1986. He says he arrived in the United Kingdom on 6 January 2003. He says that he was granted asylum on 29 August 2003. He says that, following a criminal conviction, he was detained by the Defendant under immigration powers pending deportation. The Defendant provides a fuller description of what she says is the Claimant's immigration history and his period in the United Kingdom in detailed grounds of resistance filed on her behalf. That indicates, if correct, that the Claimant was granted asylum on 29 August 2003 and that he was first convicted on 23 May 2006 of threatening to harm a witness, juror or person assisting in the investigation of an offence and was sentenced to 15 months' imprisonment. The Defendant says that he was convicted again on 4 September 2006 for a further offence of assault occasioning actual bodily harm and sentenced to 6 months' imprisonment. The Defendant says the Claimant was then served with a notice of deportation in April 2007. Further events are alleged to have taken place but, in short, the Defendant says a deportation order was made on 21 July 2008 and served on the Claimant on 4 September 2008. The Defendant then asserts that the Claimant was convicted on 15 April 2013 for child cruelty and sentenced to one year's imprisonment. The Defendant further says that it transpired that the Claimant was in fact of Guinean nationality and the Defendant intends to return him to Guinea. None of that is dealt with in the Claimant's evidence and from comments made at the hearing, it appears that some of the factual assertions of the Defendant are contested, in particular the claim that a deportation order was made. I make no findings of fact in relation to this matter but simply record the different versions of events as setting out the potential background to the specific events forming the subject matter of the claim.
The Claimant was, it seems, detained pursuant to the Act. On 29 October 2013, the Claimant was granted bail by the First-tier Tribunal (Immigration and Asylum Chamber) and there is a copy of the order included in the Claimant's bundle. That provides that the primary conditions of bail are:
"1. The applicant is to appear before an Immigration Officer at: Northumbria House, Norfolk Street, North Shields NE20 1LN within 48 hours of being released.
2. The terms of bail may be varied at any time during their currency by application or at the Tribunal's own motion."
The order provides that the secondary conditions of bail are that:
"1. The applicant shall live and sleep at the address above
2. Bail is granted subject to
i) the applicant co-operating with the arrangements for electronic monitoring (tagging) as set out in s. 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 the grant of bail. If electronic monitoring is not effected within two working days then the applicant is to be released on condition he complies with the above requirements."
On, it seems, about 30 October 2013, the Claimant reported to the relevant immigration officer and I was told that the bail granted by the First-tier Tribunal came to an end. On, or about, 30 October 2013, the Claimant was given a document headed, "Home Office, Immigration Act 1971, UK Borders Act 2007", and in the following terms, so far as material:
"NOTICE OF RESTRICTION
To: Thierno Ibrahima Thierno Ibrahima Diallo Guinea 15 December 1988
You are liable to be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971/Section 36 of the UK Borders Act 2007.
The Secretary of State has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the 1971 Act/Section 36(5) of the 2007 Act, she now imposes the following restrictions on you:
1. You must report in person to the immigration officer in charge of North Shields Reporting Centre at:
Northumbria House Norfolk Street North Shields NE30 1LN
2. You must then report in person to the immigration officer in charge of the North Shields Reporting Centre on Monday 4 November 2013 and Wednesday 6 November 2013 and Friday 8 November 2013 between 10.00 and 16.00 hours and then weekly every Monday, Wednesday and Friday thereafter or on such other days in each week as the officer to whom you made your last weekly reports may allow.
3. You must live at address
Flat 4,
14 Argyle Square
Sunderland
SR2 7BS
4. YOU ARE TO BE MONITORED ELECTRONICALLY BY MEANS OF TAGGING/TRACKING
5. You must be present at the address shown above for induction on Saturday 2 November 2013 between the hours of 10 am to 6 pm, when an officer from G4S will call at your address to install the Electronic Monitoring equipment and explain how the system operates.
6. Following induction you must be present at the address shown above between the hours of 23.00 hours to 07.00 am every day, and every day thereafter, between the hours of 23.00 hours to 07.00 am.
7. You may not enter employment, paid or unpaid, or engage in any business or profession.
You should note that:
i) You must not change the address at which you live without the agreement of the Secretary of State. If you wish to change your address you should contact the Home Office at the address shown below. If the change of address is agreed you will be notified and a new restriction order will be served.
ii) If without reasonable excuse you fail to comply with any of these restrictions you will be liable on conviction to a fine not exceeding the maximum on level 5 of the standard scale (currently £5000) or imprisonment for up to 6 months or both."
It appears from the Claimant's witness statement that the electronic monitoring company was unable to place an electronic tag on him because of errors in the relevant documentation. The Claimant changed address during this period. It appears that, on 3 February 2014, the Claimant was fitted with an electronic tag and electronic equipment was installed in the premises where he was then living to enable his movements...
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