R (Jollah) v SSHD  EWCA Civ 1260
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Regina (Jollah) v Secretary of State for the Home Department
2018 May 16; June 12Davis, Hickinbottom LJJ, Sir Stephen Richards
Immigration— Deportation— Restriction pending deportation— Secretary of State unlawfully imposing curfew restriction on claimant— Whether curfew constituting false imprisonment
The Secretary of State served the claimant with a notice of restriction under which a curfew was imposed on him, purportedly pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971, pending his deportation. The notice, which contained an express warning of criminal liability in the event of breach, provided that the claimant was required to be present at a particular address between the hours of 23.00 and 07.00 every day and was to be monitored by electronic tagging, with which he was subsequently fitted. Thereafter in a different case the Court of Appeal ruled that paragraph 2(5) of Schedule 3 to the 1971 Act did not empower the Secretary of State to impose a curfew. As a result the claimant sought damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The judge determined that a restriction requiring the claimant to reside for eight hours a day at a particular place, non-compliance with which without reasonable excuse was a criminal offence, amounted to detention for the purposes of false imprisonment and assessed damages at £4,000. The Secretary of State appealed, contending that, inter alia, the claimant was not imprisoned in the relevant sense as he was not subject to any physical restraint, there was no guard at his door, he was at all times during the curfew hours physically able to leave his house and the curfew requirement was satisfied by voluntary compliance, not by any form of constraint. The claimant cross-appealed against the amount of damages awarded.
On the appeal and the cross-appeal—
Held, appeal and cross-appeal dismissed. (1) Imprisonment could be actual and constructive, with the latter not involving any physical force but involving the notion of overbearing compulsion, connoting restraint within some limits “defined by a will or power exterior to our own”. Whether there was such a degree of compulsion as to constitute constructive imprisonment depended on the facts of each case. While the authorities broadly supported the proposition that voluntary compliance with an instruction or request to remain in a physical place did not amount to imprisonment in the relevant sense, whether such compliance was truly voluntary had to be determined on the circumstances of the particular case. In the present case, the claimant remained in the relevant property during the curfew hours, operating under the formal notice of restriction, the threat of criminal sanction and electronic tagging. There was “restraint within some limits defined by a will or power exterior to his own”. The curfew requirement was being satisfied not by voluntary compliance but by compelled compliance and the claimant was acting by way of submission to a legal process. Accordingly the judge was right so to rule (paras 57, 58, 61, 76, 77, 79, 85, 86, 88).
Bird v Jones (1845) 7 QB 742 and R (Gedi) v Secretary of State for the Home DepartmentB considered. (2) In respect of the assessment of damages for false imprisonment in an immigration detention context, each case was to be decided by reference to its own facts and circumstances. In the present case the court would not interfere with the judge’s assessment of damages (paras 90, 98, 99, 100, 101).
Decisions of Lewis JB and B affirmed.
Robin Tam QC and Emily Wilsdon (instructed by Treasury Solicitor) for the Secretary of State.
Dinah Rose QC and Jude Bunting (instructed by Saunders Law) for the claimant.
Nicola Berridge, Solicitor