R (on the application of Lupepe) v Secretary of State for the Home Department
 EWHC 2690 (Admin)
Following a three-day hearing in the Administrative Court, Lewis J found that a curfew imposed on a foreign national offender was unlawful as it was imposed pursuant to an unpublished policy about curfews, and because the Claimant was not afforded an opportunity to make representations prior to its imposition. The policy concerned the re-imposition of curfews that had had to be lifted following the Court of Appeal’s decision in R (Gedi) v Home Secretary  EWCA Civ 409,  4 WLR 93 (in which Robin Tam QC had also represented the Home Secretary).
However, the Court rejected a number of other arguments advanced by the Claimant. The Court’s conclusions included the following:
There was no abuse of power or departure from an earlier decision of the First-tier Tribunal to grant bail to the Claimant (which had not specifically considered whether or not to impose a curfew).
The bail power contained in paragraph 22 of Schedule 2 of the Immigration Act 1971 is not limited to preventing absconding, but could be used to prevent offending.
The Secretary of State’s use of ‘nominal’ re-detention for a very short period in order to grant bail including a curfew was not detention which was covered by Chapter 55 of the Enforcement Instructions and Guidance, and respected the FTT’s decision that the Claimant should be released from detention on appropriate conditions.
As a matter of principle, a 7-hour curfew would not necessarily be more onerous than two periods of 2 hours each; and a substantive curfew of a number of hours each day would not necessarily be disproportionate or unjustified, intended as it is to ensure that the offender keeps regular structured hours and returns home on a daily basis, which can deter absconding and reduce the risk of re-offending.
Robin Tam QC and Emily Wilsdon, along with Mathew Gullick at 3PB, were instructed by the GLD on behalf of the Secretary of State.
The Judgment can be viewed here.