Alternatives to immigration detention: false imprisonment by curfew?
Date posted: 27 November 2019
Our Imogen Townley reports on a recent case challenging the lawfulness of a curfew placed on a vulnerable asylum seeker.
We recognise that the issue of false imprisonment does not always end with release from immigration detention. Members of our immigration department who attended the ELENA conference learnt from European asylum lawyer colleagues of creative practices developing in Europe which deprive migrants of their liberty through ‘alternatives to detention’. One example given was the practice of the Austrian state, accommodating asylum seekers in a remote building, half-way up a mountain, without mobile phone network signal, where the nearest settlement is more than a two hour walk away.
In the UK, while the Home Office clings to and overuses immigration detention, alternatives to conventional detention centres are in use here too. The Home Office has powers to impose bail conditions on individuals on immigration bail, and this can include imposition of a curfew within a person’s own home. This requires the individual to wear a permanent tag around an ankle, and the location of the tag is electronically monitored via a box installed in the person’s own home. The person is required to remain within range of the box while inside the curfew hours. While preferable to being held in detention, this practice is intrusive and stress-inducing, and conditions of this kind are not necessarily lawful.
Decisions to place a person under curfew are not appeal-able, however they can be challenged in other ways such as by application for variation and by judicial review.
One of our client’s was recently informed of a decision to place him under curfew via an Electronic Monitoring system. In our view this decision is wrong; our client had fully complied with reporting and other release conditions since leaving immigration detention. He had proven that a curfew is an unnecessary measure to ensure he remains in contact with the immigration authorities. A home curfew is an inherently intrusive measure and should certainly only be used if there are no other equivalently effective measures available. This particular curfew proposed by the Home Office was to start at 10pm every evening and lift at 8am the following day, requiring our client to stay inside his address for 10 hours out of every 24 hours. Our client came to this country to seek asylum having been detained arbitrarily by his home state authorities and tortured. His mental ill-health is of great concern to us and we are concerned that further false imprisonment through this onerous requirement has the potential to cause him further psychiatric harm.
The Home Office decision warned that failure to abide by the curfew could constitute a criminal offence. Any breaches would encourage them to re-detain our client in a detention centre. In the same decision letter – and despite recent authoritative case law concluding the opposite – the Home Office stated that the curfew could not constitute false imprisonment because it would be our client’s own choice whether he complied. The letter repeatedly stated that ‘there would be no guard outside the door’, and ‘no key in the lock’. The level of distress this rhetoric provoked in our client is hard to explain. The decision letter did not properly engage with representations we had already made that tagging was unnecessary and would breach our client’s rights under the ECHR. And particularly unfairly, the decision arrived at our offices a full two weeks after it had been drafted and only 4 working days before the date the curfew was due to be imposed. This unexplained delay prevented us obtaining detailed medical and other evidence which may have been useful in a challenge to the decision. This is a complex area of law and the lack of time severely hampered efforts to challenge the decision.
Despite the lack of time available, and despite the deterioration in our client’s mental health limiting his ability to attend the office and give detailed instructions, we together managed to prepare a judicial review and interim relief application. The same day the Home Office were due to attend our client’s address, the Upper Tribunal granted an injunction prohibiting the installation of tagging equipment. The judicial review of the legality of this decision is ongoing.
This work is conducted under a legal aid certificate. If you are affected by a curfew or another bail condition which you consider to be unfair please contact us for advice on potential remedies. We are able to investigate merits and advise under our legal aid contract for those financially eligible.
Imogen can be contacted at firstname.lastname@example.org