MS v Secretary of State for the Home Department (Rev 1) [2016] EWHC 3162 (Admin)

[2016] EWHC 3162 (Admin)Case No CO/2528/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/12/2016
Before
MR JUSTICE COLLINS
Between
MSClaimantSecretary of State for the Home DepartmentDefendant
Ms Stephanie Harrison, QC and Ms Charlotte Kilroy (instructed by Birnberg Peirce and Partners) for ClaimantMs Julie Anderson (instructed by GLD) for DefendantHearing Hearing dates: 22 nd and 23 rd November 2016
Judgment Approved
[1]The claimant is an Indian national. He is a Sikh who was involved in terrorist activities. He would be persecuted were he to be returned to India but, as a result of his terrorist activities, he was not entitled to benefit from the Refugee Convention because of Article 1F. However, he cannot be removed because to do so would breach his rights under Articles 2 and 3 of the ECHR since, as has been accepted by the defendant, there is a real risk that he would be subjected to torture or inhuman treatment or even killed.[2]With effect from 2 September 2011 the defendant through the UKBA issued a policy statement entitled “Policy Statement on Article 1F of the Refugee Convention restricted discretionary leave.” It provides as follows:- “With effect from 2 September 2011, all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to a new, tighter, restricted leave policy. Such cases should usually only be granted restricted discretionary leave to remain for a maximum of 6 months at a time, with some or all of the following restrictions:• A condition restricting the person's employment or occupation in the UK;• A condition restricting where the person can reside;• A condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals; and• A condition prohibiting the person studying at an education institution. In addition, relevant information on all Article 1F cases will be referred by the UK Border Agency to the Independent Safeguarding Authority (ISA) to consider whether the individuals concerned should be barred from working/volunteering in ISA-regulated fields.This policy applies to all relevant individuals, whether they are seeking leave or renewal of leave to remain, including cases in which a previous grant of leave to remain was for a period longer than 6 months. The power to attach conditions to leave is provided by section 3(1)(c) of the Immigration Act 1971. A person who knowingly fails to observe a condition of their leave commits an offence by virtue of section 24 (1)(b)(ii) of the Immigration Act 1971. Where appropriate, this policy will be enforced by the prosecution of individuals who do not comply with the conditions of their leave.” It will be referred to as RLR (Restricted Leave to Remain).• A condition restricting the person's employment or occupation in the UK;• A condition restricting where the person can reside;• A condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals; and• A condition prohibiting the person studying at an education institution.[3]The claimant together with another, MBT, a Tunisian national who was in the same situation as MS, instituted proceedings before the UT(IAC) in which they argued that the RLR policy was unlawful for a number of reasons. In particular, it was said that it was not permitted by the provisions of section 3(1)(c) of the Immigration Act 1971. It was further submitted that the claimant should have been granted Indefinite Leave to Remain (ILR) since he had been in this country for a very long time, had a wife and children here and there was no possibility of his return within the foreseeable future. The tribunal consisting of Dove J and UT Judge Gill in a judgment given on 4 September 2015 decided that the RLR policy was lawful and so could be applied to the claimants: R(MS and MBT) v. SSHD [2015] UKUT 00539(IAC). But in relation to MS the tribunal concluded that the policy had not been properly applied because the defendant had failed to consider whether, as it was put, ‘the end point has been reached in his particular circumstances’. By ‘the end point’ the tribunal meant that it should have been considered whether the time had come to grant ILR or leave in excess of 6 months at a time which is what the policy laid down.[4]The Court of Appeal has granted permission to appeal against the decision that the RLR policy was lawful and the hearing of the appeal is due in March 2017. It was accepted by the claimant’s representatives that I should assume the lawfulness of the policy. While the decision in MS and MBT is not binding on me, I would treat it with great respect, having regard in particular to the constitution of the tribunal. I will simply say that in my view the decision was correct.[5]Since the decision in MS and MBT, the defendant on 18 February 2016 decided to grant the claimant leave to remain for 2 years instead of 6 months but otherwise imposed much the same conditions as had been imposed under the previous grants of limited leave. That is the decision challenged in this claim. There are essentially three matters that I have to determine. First, it is submitted that it is now unlawful because unreasonable to fail to grant ILR. Secondly, it is submitted that the conditions imposed are wholly unnecessary and so unlawful. Thirdly, it is submitted that one of the conditions which requires the claimant to obtain the defendant’s consent if he wishes to leave his address for more than specified periods is unlawful because it amounts to a restriction or imprisonment as understood by the common law which is not authorised by the general power to impose conditions contained in s.3(1)(c) of the 1971 Act.[6]On 15 and 16 November 2016 I heard argument in a claim R(G) v. SSHD (CO/1847/2016). G is an Algerian national who was involved in terrorist activities but whose asylum claim was refused so that Article 1F was not applied to him. But a certificate was issued under the provisions of the Anti-Terrorist Crime and Security Act 2001 which led to his detention and ultimate release on bail with a view to his deportation. He too could not be removed because to do so would breach his human rights. While the RLR policy did not directly apply to him, its limitations and conditions were used in his case. The lawfulness of this and the contention that in his case the time had come for at least a lengthy period of leave if not ILR were raised. In addition, there was argument that the conditions requiring the defendant’s consent to being away from his residence for more than particular periods were unlawful. Save that in this case Ms Kilroy was led by Ms Harrison QC, counsel and solicitor in G were the same as in this case. But I do not think it is appropriate to give a joint judgment since the cases are separate and were heard separately. The argument about the condition was more detailed in this case and so I will deal with it in this case in full. Since I intend to hand down judgment in both at much the same time, rather than repeat the reasons given in this case in G, I shall simply indicate in G that my full reasons should be looked at in this case.[7]I have set out the policy, but it is important to take account of the Asylum Policy Instruction published on 23 January 2015 which gives guidance on the application of the policy. The policy is based on the view that those who are excluded from the Refugee Convention because of Article 1F should not be allowed to remain here since, whether or not they are a danger to national security, their presence is not conducive to the public good. That view is not nor could it be challenged. It is to be noted that exclusion under Article 1F can never be relaxed so serious is the conduct which has led to the exclusion.[8]The instruction is a lengthy document and so I shall summarise its most relevant provisions. The purpose behind the grant of 6 months leave at a time is to require frequent review of cases to ensure removal as early as possible. In paragraph 1.3.1 it is said:- “….we want to ensure close contact and give a clear signal that the person should not become established in the UK.” The conditions are imposed to ensure that where a person lives and works can be monitored and, where necessary, access to positions of influence or trust can be prevented.[9]Duration of leave will in most instances be limited to 6 months. Apart from sending the message that there is normally no prospect of being allowed to remain, reference is made to paragraph 13(2)(b) of the Immigration (Leave to Enter and Remain Order) 2000 (S.I.2000/1161) which provides that, if someone with leave to remain for 6 months or less travels outside the UK, his leave will lapse. If he has longer leave, he should normally be readmitted.[10]Residence conditions are dealt with in 4.5 of the instruction. The purpose behind them is the obvious need for the Home Office to maintain contact with those covered by the policy and so a need to notify a change of address is essential so that the person’s whereabouts are always known. 4.5.2 provides:- “One of both of the following residence conditions should usually be imposed:• To notify the Secretary of State of the home address and any change of address and/or• To seek the prior consent of the Secretary of State to any change of address.” The former option will apply in all cases. The latter may be needed in particular if the person remains a risk to national security and should not be permitted access to a particular area. There may equally be circumstances in which to be in a particular area could mean that there is a risk of harm to the person or his family.• To notify the Secretary of State of the home address and any change of address and/or• To seek the prior consent of the Secretary of State to any change of address.”[11]Paragraph 4.5.5 deals with the particular condition which is said to be unlawful. It provides:- “In this section, ‘residence’ should be given the meaning of habitual residence. A person subject to a residence condition may also be subject to conditions such as:• Not spending more than three consecutive nights away from the address without the prior consent of the S/S; and• Not spending more than 10 nights away from that address in any rolling six month period. These conditions must be specified in the notice explaining the conditions attached to the leave.”• Not spending more than three consecutive nights away from the address without the prior consent of the S/S; and• Not spending more than 10 nights away from that address in any rolling six month period. 4.5.9 requires that care be taken to avoid any adverse impact on child dependents in accordance with the s.55 duty.[12]Applications for ILR are dealt with in 4.12. 4.12.1 provides:- “Those excluded from the Refugee Convention…..may make applications for ILR on the basis of long residence, for example because they have lived in the UK lawfully for 10 years or more.” Reference is made to the Immigration Rules which require that past conduct is taken into account. 4.12.1 concludes:- “Usually, given our international obligations to prevent the UK from becoming a safe haven for those who have committed very serious crimes, the conduct will mean that the application should be refused, but decisions must be taken on a case-by-case basis.” In 4.12.3 reference is made to a decision of mine in R(N) v. SSHD [2009] EWHC 1581. That case involved the only person who remained convicted of involvement in the hijacking of a plane to Stansted. I then took the view that the grant in principle of 6 months was not at all unreasonable, but the time would come when it would be proper to recognise that one who had behaved himself here, had put his previous offending behaviour behind him, had been here for at least ten years and had made his life here could be given ILR. In 4.12.4, it is said:- “Decision-makers must carefully consider the facts of an individual case against the specific facts in the case of ….N to determine whether they are analogous and whether the principles set out in that case are applicable to the case under consideration.”[13]The importance of the instruction in 4.12 is that it recognises that, despite the proper maintenance of the view that it is not conducive to the public good that a person be allowed to remain, it may be appropriate to grant him ILR. Further, it recognises that one who has been here lawfully, in that he has had leave to remain in being for at least 10 years may qualify for ILR. It must be borne in mind that if a person such as the claimant whose presence in the UK is not conducive to the public good can be removed his leave, whether limited or indefinite, can be brought to an end by a deportation order. There will of course be a right of appeal, but that will apply whether or not any leave is still subsisting, if, as will almost certainly be the case, human rights grounds are relied on.[14]I must set out the material facts of this claim. The claimant is now 44 years old. He came to this country in April 1995 and claimed asylum. His claim was refused in August 1999 and his appeal was certified on national security grounds. In July 2000 his appeal was allowed by SIAC on human rights grounds because he would be persecuted if returned to India, but he was excluded under Article 1F because of his terrorist activities. It is to be noted that his terrorist activities continued while he was in this country and SIAC determined that he had endangered national security and was a continuing danger to national security. He was initially granted 12 months exceptional leave followed by granted periods of 6 month leave until June 2005 when he applied for ILR. Despite a number of chasing letters from those representing him, no decision was reached by the defendant until the application was made to the UT(IAC) in March 2014. This led the defendant to agree to take a decision by May 2014. The claimant was then granted 6 months with these conditions:- “B. You must reside at the address shown above and you must notify the Secretary of State of any changes of address. C. You must not enter or change employment, paid or unpaid, or engage in any other business or profession without the prior written consent of the Secretary of State. D. You must report to the Secretary of State …on 2 June 2014 and every six months thereafter. E. You must not enrol in any course of study without the prior consent of the Secretary of State.” The application to UT(IAC) was amended to challenge this and the subsequent grant of 6 months leave subject to the same conditions on 16 January 2015. Failure to comply with any condition is a criminal offence punishable with a fine and/or 6 months imprisonment.[15]Following the decision of the UT(IAC), the claimant applied for indefinite leave to remain. On 18 February 2016 ILR was refused but it was decided “exceptionally” to grant 2 years Restricted Leave to Remain. The conditions imposed were, subject to some variations, the same as those I have set out in the previous paragraph. It contained in a footnote this important additional condition:- “You must not spend more than 3 consecutive nights away from this address without the prior written consent of the Secretary of State. You must not spend more than 10 nights away from this address in any rolling 6 month period without the prior written consent of the Secretary of State.” The requirement to report to an immigration officer was varied to once a year. In addition, there was to be no recourse to public funds.[16]The claimant has now been in the UK for over 20 years. He is married to a British citizen and has three children, all born here and all British citizens, aged 13, 8 and 7. During the 9 years when the defendant failed to make a decision on the claimant’s application for ILR, he was not subject to any conditions. That failure is not explained and it is clear that it was inexcusable.[17]The defendant on 17 November 2016 produced redacted copies of a submission to the Immigration Minister and the Home Secretary dated 21 January 2016 and a letter from the FCO of 14 December 2015. The FCO letter assesses that there is a risk of a breach of Articles 2 and 3 of the ECHR if the claimant were removed to India. The FCO letter concludes:- “A combination of his links to Sikh extremist groups, historic terrorist activities in India and India’s concerns about related threats from terrorist organisations, leads us to judge that MS would be of interest to the Indian authorities. As such, his removal would lead to a risk of violation of the UK’s obligations under Article 2 and 3 of the ECHR.” The submission to the ministers states this:- “S has been in the UK for 20 years, is not assessed to be a security threat, is married to a British citizen and has three children born in the UK.” It seems clear from this that there is no reason to believe that it would be possible to remove him to India in the foreseeable future and it is clear that he is no longer a risk. Thus on its face the approach set out in N which is referred to in the instructions on the application of the RLR policy should apply to this case.[18]The decision letter is lengthy and detailed. Essentially it applies the RLR requirement of limited leave without allowing that the claimant’s case can be an exception. In paragraph 33, it is said that ‘the most serious offending is excluded from them because some offences cannot be regarded as diminishing in all significance by the mere elapse of time and adherence to law abiding conduct which is expected of all.’ That is not in conformity with the RLR policy which recognises the possibility of rehabilitation by lapse of time. It emphasises the seriousness of terrorist offences and the need to make clear that the UK maintains a policy of exclusion of those who advocate terrorist action. That is no doubt appropriate, but it fails to take into account the assessment that the claimant was no longer to be considered a risk to the security of the UK since he no longer advocated terrorist action. It is said that while in 1F cases such as the claimant’s permanent settlement is not excluded altogether, it is not likely to be justified save in exceptional circumstances given the adverse impact on the public interest. The paragraph concludes with this sentence:- “Such exceptional circumstances cannot be defined in advance but cases are likely to be self-evident from their compelling nature.”[19]While I recognise that it is for the defendant to decide what amount to exceptional circumstances, it is necessary for her to take account of all relevant matters and to show in a given case that that has been done. The omission to refer to the lack of any risk to security and the very remote possibility of return to India within the foreseeable future is important. I put to Ms Anderson that, if the evidence showed that there could never be any chance of return within a person’s lifetime, it would mean that to maintain limited leave was unreasonable. She was not willing to accept even that on the basis that it would run contrary to the need to show the world that the UK would not accept terrorists. Such an approach is not only unreasonable but contrary to the RLR policy itself.[20]Ms Anderson relied on a number of authorities commencing with my decision in N to which the approach of not only maintaining limited leave but granting periods of 6 months at a time has been upheld. She referred in particular to R(George) v. SSHD [2014] 1 WLR 1831, a decision of the Supreme Court. The claimant was a serial offender and the Secretary of State decided, as she was entitled to do, that his continuing presence was not conducive to the public good. Since the coming into force of s.32 of the UK Borders Act 2007, deportation of such as Mr George would be mandatory since he was sentenced to a term of imprisonment of 4 years. Mr George could not be deported because on appeal it was decided that to deport him would breach his Article 8 rights. The issue to be decided by the court was whether his ILR, which was revoked when it was decided to deport him, was revived when the deportation could not take place. The court decided that such revival did not occur and so it was reasonable to grant him only limited leave. Initially that had been for 6 months but by the time his appeal was heard he had been granted 3 years limited leave.[21]The court emphasised that Mr George remained a person whose presence in the UK was not conducive to the public good and stated, in sentences in paragraph 31 much relied on by Ms Anderson:- “There is no legal symmetry in indefinite leave to remain co-existing with the status of someone whose presence is not conducive to the public good. It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to revisit the terms of leave to enter (sic). Moreover, the legal obstacle is not necessarily, or even usually, permanent. If it arises in an individual’s home country, those conditions may change or he may come into favour with the authorities when previously he was not. If it arises from his family connections in the UK, those may easily change.” However, in paragraph 32, Lord Hughes, who gave the judgment of the court, said:- “The Secretary of State’s grant to him of successive limited leave is perfectly proper. Whether or not it may become appropriate after the passage of time to re-grant indefinite leave is a matter for the Secretary of State.” Thus, despite the lack of legal symmetry, it was recognised that ILR might become appropriate.[22]In Kardi v. SSHD [2014] EWCA Civ 934, the court of appeal considered the propriety of the grant of only 6 months at a time in the case of a Tunisian national who had been convicted in France of a terrorist offence. He was excluded from the Refugee Convention by Article 1F but could not be returned to Tunisia because of a real risk of a breach of Article 3. He was granted 6 months limited leave in accordance with the RLR policy, having regard to the rationale for the short period, namely the need to keep the possibility of removal as a priority and the point made that leave for more than 6 months would mean that if the individual left the UK he could not be denied re-entry. I have already questioned the reality of that approach since in this case as I suspect in most if not all cases such as this there is no reason to believe that the individual would leave the UK but, if he did, his leave could be terminated since to allow him back would not be appropriate because his presence in the UK was not conducive to the public good. In paragraph 29, Richards LJ stated:- “The various elements of the stated rationale are all in principle legitimate aims, though it will be necessary to consider the extent to which they are specifically engaged in the appellant’s case. More needs to be said, however, about the stated wish to give a clear signal that the person should not become established in the United Kingdom. The rationale of the previous discretionary leave policy was described by Cranston J in R (Mayaya) v Secretary of State for the Home Department [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491, at paragraph 57, as being “not simply to ensure regular reviews so that foreign national prisoners [the specific category of persons in issue in that case] can be removed from the United Kingdom when the opportunity arises”, but also “to plant road blocks in the way of foreign national prisoners settling here”, though settlement might in practice still occur. In other words, the grant of short periods of leave emphasised the intended impermanence of the individual’s stay in this country and made it more difficult to put down roots here and to build up a private life, thus reducing the prospect of removal being prevented on Article 8 grounds when the opportunity otherwise arose. The current restricted discretionary leave policy, by providing for the imposition of specific conditions on the grant of leave, is intended to reduce further the opportunity to put down roots and thereby to reinforce the road blocks planted in the way of settlement here. It does not prevent the establishing of a private life but makes it more difficult and so increases the chance that the delay before removal can be effected does not operate to prevent removal altogether. That is a legitimate aspect of immigration control.” I confess to some doubt about the validity of the penultimate sentence since so long as the individual remains here, however short the periods of leave are, he will inevitably be able to put down roots and establish private life. I accept that the imposition of conditions limiting employment or education may have some effect. Furthermore, it is noteworthy that Richard LJ limited his observations to the difficulty in establishing private life. He does not refer to family life, no doubt for the very good reason that short periods of leave and conditions could not affect the ability to achieve a family life with a partner and children.[23]Since the decision in Kardi, there has been enacted what are now sections 117A to D of the Nationality, Immigration and Asylum Act 2002. These provisions make the grant of limited rather than indefinite leave the more important because of the effect of limited leave on a persons Article 8 claim. The most material section for the purposes of this claim is 117B which by subsections (4) and (5) provides as follows:- “(4) Little weight should be given to –(a) a private life, or(b) a relationship formed with a qualifying partner that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.” Section 117C deals with additional considerations in the case of foreign criminals. MS is not in that category since 117C is intended to cover in particular those who have been convicted and sentenced in this country to imprisonment for four years or more. I need not in the circumstances deal with its provisions.[24]In Rhuppiah v. SSHD [2016] EWCA Civ 803 the Court of Appeal had to consider the meaning of ‘precarious’ in s.117B. The court noted that in Jeunesse v. Netherlands [2005] EHRR 17 at paragraph 108, the Grand Chamber of the ECtHR had said this:- “Another important…consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the onset be precarious. It is the Court’s well-established case law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of a non-national family member will constitute a violation of Article 8” Sales LJ, who gave the only reserved judgment, said that this showed that precariousness did not depend on unlawful presence. In paragraph 34, Sales LJ said:- “In the context of section 117B, the relevance of precariousness of immigration status in the effect it has on the extent of protection which should be allowed to private life for the purposes of the Article 8 proportionality balancing exercise. The more that an immigrant should be taken to have understood that their time in the host country would be comparatively short or would be liable to termination, the more the host state is able to say that a fair balance between the rights of the individual and the general public interest in the firm and fair enforcement of immigration controls should come down in favour of removal when the leave expires.”[25]Thus the court decided that a person who was in this country with only limited leave could be regarded as having only a precarious status. I put it that way because in paragraph 44 Sales LJ said that he would wish to reserve his opinion about the submission of counsel for the Secretary of State that any grant of limited leave short of ILR qualified as precarious. He said he doubted the correctness of that submission. He concluded:- “If that had been intended, the drafter of section 117B(5) could have expressed the idea more clearly and precisely in other ways. There is a very wide range of cases in which some form of leave to remain short of ILR may have been granted, and the word "precarious" seems to me to convey a more evaluative concept, the opposite of the idea that a person could be regarded as a settled migrant for Article 8 purposes, which is to be applied having regard to the overall circumstances in which an immigrant finds himself in the host country. Some immigrants with leave to remain falling short of ILR could be regarded as being very settled indeed and as having an immigration status which is not properly to be described as "precarious". The Article 8 context could be taken to support this interpretation.”[26]It is important to bear in mind that precarious presence does not diminish the weight to be attached to family life as opposed to private life. The problem created by Sales LJ’s approach is to know where to draw the line. Is a person to be regarded as ‘very settled indeed’ by reason of length of time or irremovability or only if he has a very lengthy period of limited leave? Those who have to deal with applications or appeals are left in doubt as to how Sales LJ’s approach should be applied. But, if he is correct, the cessation of a state of precariousness will mean that the weight to be attached to private life as well as family life becomes the same as that to be attached to the case of one who has indefinite leave to remain.[27]Nevertheless, in many cases the maintenance of limited leave will have the effect of diminishing the weight to be given to private life rights in considering proportionality. That can be of considerable importance in a given case, but in this case it is of marginal importance since it is clear that the claimant is in particular relying on his family life. Furthermore, s.117B does not effect the need to give appropriate weight to the interests of children pursuant to s.55. In addition, it seems to me that the circumstances of this case, having regard to the length of time the claimant has been here, his life with his family and his irremovability, show that he should be regarded as ‘very settled’ so that his presence here should not now be regarded as precarious.[28]The only purpose now of a grant of limited as opposed to indefinite leave is to leave open the opportunity to remove the claimant and make clear to him that his presence here is not conducive to the public good and that, if he could be, he should be removed. He has already had full opportunity to establish not only family life but private life. Thus there is no need for any of the conditions which can only be imposed if limited leave as opposed to indefinite leave is granted. It could be said that the 9 years he was here without conditions points clearly in that direction.[29]In my judgment, if this case is not one in which the time has come to grant ILR, it is difficult to see what circumstances would qualify for ILR. The last sentence of paragraph 33 of the decision letter which said that exceptional circumstances which would justify ILR could not be defined in advance but would be likely to be self evident from the compelling nature I have already criticised. But, if it is to be applied, I am satisfied that they are shown here.[30]I now turn to the condition which prohibits absence from the approved residence for the periods specified without the defendant’s consent. Section 3(1)(c) of the Immigration Act 1971 provides:- “except as otherwise provided by or under this Act, where a person is not a British Citizen - ….. (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following circumstances, namely - …… a condition about residence.” Ms Kilroy, who developed the argument on this issue, relied in particular on a recent decision of the Court of Appeal, Gedi v. SSHD [2016] 4 WLR 93. Mr Gedi was a foreign criminal who had been sentenced to more than 4 years imprisonment and so was to be deported. He was thus liable to be detained. Due to a mix up, a grant of bail with conditions could not be maintained and so any relevant conditions depended upon the power in sub-paragraph 2(5) of Schedule 3 to the 1971 Act, which provided:- “A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State.” a condition about residence.”[31]The question to be decided in Gedi was whether the imposition of a curfew was within the power conferred by Paragraph 2(5). The court decided that it was not since it amounted in effect to a requirement to reside at a particular address and in a way which was restrictive of the manner in which a person could reasonably carry on his life and still be living at a particular address. In paragraph 36, the court said:- “Furthermore, it is important to underline the need for the clearest legislative authority for a requirement of this nature.”[32]Edis J at first instance had decided that the imposition of the curfew amounted to the tort of false imprisonment. The Court of Appeal did not deal with that finding since it was sufficient that the curfew amounted to a restriction on the liberty of the individual to live at a residence as he reasonably wished.[33]Edis J relied on what is set out in paragraph 15-23 of Clerk and Lindsell on Torts 21st Edition. Both sides before him accepted that it accurately stated the law. The opening sentence reads:- “False imprisonment is ‘the unlawful imposition of constraint on another’s freedom of movement from a particular place’. ” It is easy to see why a curfew, breach of which constitutes a criminal offence, falls within that definition. Ms Kilroy submits that the condition in this case does amount to a constraint on the claimant’s freedom of movement from his residence for the period during which the consent of the Secretary of State is required. If he were to exceed a three day absence or to leave his address for more than 10 days in any 6 months, he would be subject to prosecution for a criminal offence.[34]A leading authority on false imprisonment is Meering v. Grahame-White Aviation Co. Ltd (1919) 122 LT 44, a decision of the Court of Appeal. The material facts were that the plaintiff, an employee of the defendants, was suspected of having stolen items. A warrant had been obtained to search the plaintiff’s address, but the police did not want him to be present when the search took place. He came to a waiting room at the defendant’s office having been told by a superior that he was wanted at the works. He was not aware that he was suspected of an offence or that his presence at the works would be ensured if he had wanted to leave. There were police officers outside the waiting room who would have acted if he had sought to leave. It was this detention in the waiting room which formed the false imprisonment.[35]The common law test which the court applied was derived from “Termes de la Ley” in these words:- “‘Imprisonment’ is no other thing, but the restraint of a man’s liberty, whether it be in the open field, or in the stocks, or in this case in the street or in a man’s owne house, as well as in the common gaole, and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to goe at all times to all places whither he will without baile or main-prise or otherwise.” Atkin LJ said that a man might be imprisoned without knowing it. And he observed:- “It is true that in all cases of imprisonment ‘strong walls do not a prison make’ in the sense that they are not the only form of imprisonment, but any restraint within a defined bounds which is a restraint in fact may be an imprisonment.” Atkin LJ said that there were two views that the jury could have formed. The first was that the police sergeant in charge would have restrained the plaintiff’s liberty if he had sought to exercise his liberty, the second that he had made up his mind from the time that the plaintiff was in the waiting room that he should not exercise his liberty. It was this second view which the jury was entitled to give and which justified the finding of false imprisonment.[36]Ms Anderson relied on observations of Lord Goff in R v. Bournewood Mental Health Trust Ex p. L. [1999] 1 AC 458. On page 486 C-F he said this:- “In the course of their judgment, the Court of Appeal ante, p. 465 stated that:
". . . a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving."
I observe however that no mention is here made of the requirement that, for the tort of false imprisonment to be committed, there must in fact be a complete deprivation of, or restraint upon, the plaintiff's liberty. On this the law is clear. As Atkin L.J. said in Meering v. Grahame-White Aviation Co. Ltd (1919) 122 L.T. 44, 54, "any restraint within defined bounds which is a restraint in fact may be an imprisonment." Furthermore, it is well settled that the deprivation of liberty must be actual, rather than potential. Thus in Syed Mahamad Yusuf-ud-Din v. Secretary of State for India (1903) 19 T.L.R. 496, 497, Lord Macnaghten said that:
"Nothing short of actual detention and complete loss of freedom would support an action for false imprisonment."
And in Meering, at pp. 54-55, Atkin L.J. was careful to draw a distinction between restraint upon the plaintiff's liberty which is conditional upon his seeking to exercise his freedom (which would not amount to false imprisonment), and an actual restraint upon his liberty, as where the defendant decided to restrain the plaintiff within a room and placed a policeman outside the door to stop him leaving (which would amount to false imprisonment). In cases such as the present it is, I consider, important that the courts should have regard to the ingredients of the tort as laid down in the decided cases, and consider whether those ingredients are in fact found to exist on the particular facts of the case in question. With that in mind, I turn to consider the facts of the present case.” She submits that there is here no actual detention but only a restraint conditional upon the claimant seeking to leave his home for more than the permissible periods.[37]I confess that when the issue was first raised my reaction was that this case could not reasonably be regarded as imprisonment. I have been persuaded that there is a serious issue raised but in the end I am not persuaded that there is any actual detention here such as to amount to imprisonment. But that does not mean that the condition is lawful since it is a restriction on the claimant’s liberty to live his life and falls within the principle expounded by the court in Gedi.[38]Accordingly, I think that the claimant succeeds on all grounds. The time has in my view come when to fail to grant ILR would be irrational. It follows that the conditions imposed are unreasonable and unnecessary and the condition restricting his ability to be away from the address for more than the periods set out is unlawful. I will hear counsel on any appropriate relief.[39]There is a claim for damages raised by the claimant in respect of the restraint condition. I have decided that, albeit unlawful, there was no tort. It may be in the circumstances that there is no cause of action to claim damages, but I have heard no argument on the point. Even if there is a valid claim, any damages will be small since at most the claimant’s peace of mind was disturbed since he felt that he was at risk of overstaying if he wanted for example to visit friends out of Leicester for a weekend. If a claim is to be pursued, it must be in the Queens Bench.

Cited in 5 later judgments