[2024] UKUT 00141 (IAC)

The relevant statutory provisions governing immigration bail are contained within Schedule 10 of the Immigration Act 2016. Since the applicant was being detained pending deportation the grant of bail by the FtT was empowered by paragraph 1(3)(b) of Schedule 10 of the 2016 Act. At paragraph 2(2) of Schedule 10 of the 2016 Act it is provided that in instances of this kind paragraph 2(3) shall apply, and in particular pursuant to paragraph 2(3)(a) if immigration bail is granted to a person such as the applicant “it must be granted subject to an electronic monitoring condition”. Paragraph 2(5) of Schedule 10 of the 2016 Act provides for two exceptions to this mandatory requirement to impose an electronic monitoring condition. The two exceptions are where the imposition of such a condition on the person in question would be “impractical”, or, alternatively, “contrary to the persons convention rights”. Paragraph 3 of Schedule 10 of the 2016 Act sets out at paragraph 3(2)(a) to (e) a sequence of familiar factors to which the respondent or the FtT must have regard in deciding whether to grant bail and, if so, subject to what conditions. These matters include the likelihood of the person complying with a bail condition, whether they have been convicted of an offence, the likelihood of them committing an offence whilst on immigration bail or causing a danger to public health or being a threat to the maintenance of public order when on immigration bail and whether the detention of that person is in that person’s interests or for the protection of another.

Paragraph 4 of Schedule 10 of the 2016 Act contains the definition of what is meant by an “electronic monitoring condition” for the purposes of the Schedule. Given the importance of this element of Schedule 10 to the arguments it is necessary to set it out in full:

“4

(1)

In this Schedule an “electronic monitoring condition” means a condition requiring the person on whom it is imposed (“P”) to co-operate with such arrangements as the Secretary of State may specify for detecting and recording by electronic means one or more of the following—

(a)

P's location at specified times, during specified periods of time or while the arrangements are in place;

(b)

P's presence in a location at specified times, during specified periods of time or while the arrangements are in place;

(c)

P's absence from a location at specified times, during specified periods of time or while the arrangements are in place.

(2)

The arrangements may in particular—

(a)

require P to wear a device;

(b)

require P to make specified use of a device;

(c)

require P to communicate in a specified manner and at specified times or during specified periods;

(d)

involve the exercise of functions by persons other than the Secretary of State or the First-tier Tribunal.

(3)

If the arrangements require P to wear, or make specified use of, a device they must—

(a)

prohibit P from causing or permitting damage to, or interference with the device, and

(b)

prohibit P from taking or permitting action that would or might prevent the effective operation of the device.

(4)

In this paragraph “specified” means specified in the arrangements.”

Paragraph 7 of Schedule 10 of the 2016 Act also applied to the applicant. At paragraph 7(2) it is established that the respondent must not exercise the powers provided by paragraph 6 (1) of Schedule 10 of the 2016 Act so as to remove an electronic monitoring condition unless paragraph 7(3) of Schedule 10 applies. Paragraph 7(3) applies where either it would be impractical for the person to continue to be the subject of an electronic monitoring condition or, alternatively, it would be contrary to that persons Convention rights for the person to continue to be subject to the condition.

The specific provisions of Article 8 are so well-known it is unnecessary to rehearse them in detail here. Their application in the present case, and the arguments of the parties, were addressed in the form of the structure set out by Lord Bingham in paragraph 17 of his opinion in the case of R v Secretary of State for the Home Department Ex parte Razgar [2004] UKHL 27. It is accepted by both the applicant and the respondent that the requirement to wear a GPS tag is an interference with the applicant’s Article 8 rights. This is in consequence of the fitting of the physical device itself, the harvesting of the locational data which the device permits and the psychological impact of the subject of the GPS tag being aware that their movements are at all times being monitored and that surveillance is taking place. Thus, the first two questions posed by Lord Bingham in paragraph 17 of Razgar are undisputed and to be answered in the affirmative.

The third question, namely whether such interference with Article 8 caused by the GPS tag is “in accordance with the law”, is contentious. The general principles in relation to the application of the “in accordance with the law” standard was considered by Lord Sumption JSC in the case of R (on the application of Catt) v Commissioner of Police of the Metropolis & another [2015] UKSC 9. The case concerned the retention by the police of records of events. It was accepted it was lawful for the police to have made the records, but their retention on a searchable database was submitted to amount to an unlawful interference with Article 8 rights. The relevant requirements in relation to whether or not an interference with a person’s Article 8 rights in respect of their private life was “in accordance with the law” was analysed by Lord Sumption in the following terms:

“11.

The requirement of article 8(2) that any interference with a person’s right to respect for private life should be “in accordance with the law” is a precondition of any attempt to justify it. Its purpose is not limited to requiring an ascertainable legal basis for the interference as a matter of domestic law. It also ensures that the law is not so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis. In R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307, para 34, Lord Bingham of Cornhill observed that “the lawfulness requirement in the Convention addresses supremely important features of the rule of law”:

“The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.”

In the context of the retention by the police of cellular samples, DNA profiles and fingerprints, the Grand Chamber observed in S v United Kingdom (2008) 48 EHRR 1169, para 99, that there must be:

“clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness.”

For this purpose, the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them. Their application, including the manner in which any discretion will be exercised, should be reasonably predictable, if necessary with the assistance of expert advice. But except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. It is enough that it lays down principles which are capable of being predictably applied to any situation.”

Lord Sumption went on to observe that the principle statutory framework in that case, namely the Data Protection Act 1998, was one of general application. It made provision for Data Protection Principles to establish a comprehensive code supplemented by a statutory Code of Conduct and further mandatory guidance. Whilst there were discretionary elements in this statutory scheme, bearing in mind the wide variety of circumstances to which they might apply, their ambit was limited by the application of the Code of Practice and the guidance and also by the discretion invested in the Information Commissioner as to whether or not to take action in respect of breaches of the Data Protection Principles. Lord Sumption observed that given the plethora of circumstances in which questions of compliance might arise, and the inevitable need for the exercise of judgment, codification of precisely what data would be obtained about an individual and for how long it would be stored was impossible. Any person who thought that the police might hold personal information about them had a right to have access to it and, once aware of it, to bring a complaint before the Information Commissioner. In the light of these conclusions Lord Sumption formed the view that the retention of data in the police information systems with which the case was concerned was in accordance with the law, and the real question was whether or not the interference was proportionate to the objective of maintaining public order and preventing or detecting crime.

The question of whether or not an interference with Article 8 rights was “in accordance with the law” was raised in the case of R (Bridges) v Chief Constable of South Wales [2020] 1 WLR 5037. The Divisional Court and, subsequently, the Court of Appeal considered that the general principles applicable to the “in accordance with the law” standard were well established, in particular by the discussion set out by Lord Sumption JSC in Catt. In the Court of Appeal both the parties and the court adopted the exposition of the relevant legal principles from paragraph 80 of the Divisional Court judgment as follows:

“The general principles applicable to the ‘in accordance with the law’ standard are well established: see generally per Lord Sumption JSC in Catt [2015] AC 1065, paras 11—14; and in R (P) v Secretary of State for Justice [2019] 2 WLR 509, paras 16—31. In summary, the following points apply.

(1)

The measure in question (a) must have ‘some basis in domestic Law’ and (b) must be ‘compatible with the rule of law’, which means that it should comply with the twin requirements of ‘accessibility’ and ‘foreseeability’: Sunday Times v United Kingdom (1979) 2 EHRR 245; Silver v United Kingdom (1983) 5 EHRR 347; and Malone v United Kingdom (1984) 7 EHRR 14.

(2)

The legal basis must be ‘accessible’ to the person concerned, meaning that it must be published and comprehensible, and it must be possible to discover what its provisions are. The measure must also be ‘foreseeable’ meaning that it must be possible for a person to foresee its consequences for them and it should not ‘confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself’: Lord Sumption JSC in P [2019] 2 WLR 509, para 17.

(3)

Related to (2), the law must ‘afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise’: S v United Kingdom, 48 EHRR 50, paras 95 and 99.

(4)

Where the impugned measure is a discretionary power, (a) what is not required is ‘an over-rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right’ and (b) what is required is that ‘safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights’: per Lord Hughes JSC in Beghal v Director of Public Prosecutions [2016] AC 88, paras 31 and 32. Any exercise of power that is unrestrained by law is not ‘in accordance with the law’.

(5)

The rules governing the scope and application of measures need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them: per Lord Sumption JSC in Catt at para 11.

(6)

The requirement for reasonable predictability does not mean that the law has to codify answers to every possible issue: per Lord Sumption JSC in Catt at para 11.”

At paragraph 83 of the judgment the Court of Appeal accepted a submission that, as a matter of principle, the question of whether an interference was in accordance with the law should be considered with a relativist approach in mind, such that the more intrusive the act which was complained of, the more precise and specific the law would have to be in order to justify it.

The case of Bridges concerned the implementation of a new form of technology involving the deployment of surveillance cameras to capture digital images of persons which, through the use of live automated facial recognition technology known as AFR, were processed and compared with digital images of persons on the South Wales Police Force’s watch list. It amounted to overt rather than covert surveillance. In essence the Court of Appeal concluded, contrary to the Divisional Court, that there were concerns in relation to the legal framework in place in respect of the operation of this technology. Those concerns arose in two key areas. The first was the question of the choice of who could be placed on the watch list for the purposes of the operation of the technology. The second was the question of the choice of where the technology could be deployed. The critical concern was that there were no criteria for determining either of these important questions and that this failure contravened the requirement of being “in accordance with the law”. The policies under which the technology was being operated did not sufficiently set out the terms of which the discretionary powers would be exercised by the police, and therefore it was concluded they did not have the necessary quality of law so as to satisfy the “in accordance with the law” standard.

A further illustration of the principles can be found in the European Court of Human Rights case of Uzun v Germany [2011] 53 EHRR 24. The case concerned the long-term observation of the applicant, who was suspected of participation in offences carried out by an extremist terrorist movement. He was the subject of various surveillance techniques, but in particular two transmitters were installed in the car of his accomplice to undertake surveillance via GPS. At his trial in relation to terrorist activities the court ruled that the surveillance information obtained by GPS was admissible. The applicant was convicted and following an unsuccessful appeal against conviction brought his claim before the ECHR contending a violation of Article 6 and 8. It was held by the court that although GPS surveillance might be less intrusive than other methods of visual or acoustic surveillance, nevertheless the observation of the applicant by GPS constituted an interference with his private life. The court set out its conclusions in relation to the particular features of the legal framework which rendered the use of GPS surveillance “in accordance with the law” in the following paragraphs:

“69.

In examining whether domestic law contained adequate and effective guarantees against abuse, the Court observes that in its nature conducting surveillance of a person by building a GPS receiver into the car he or she uses, coupled with visual surveillance of that person, permits the authorities to track that person’s movements in public places whenever he or she is travelling in that car. It is true that, as the applicant had objected, there was no fixed statutory limit on the duration of such monitoring. A fixed time limit had only subsequently been enacted insofar as under the new art.163f(4) of the Code of Criminal Procedure, the systematic surveillance of a suspect ordered by a public prosecutor could not exceed one month, and any further extension could only be ordered by a judge. However, the Court is satisfied that the duration of such a surveillance measure was subject to its proportionality in the circumstances and that the domestic courts reviewed the respect of the proportionality principle in this respect. It finds that German law therefore provided sufficient guarantees against abuse on that account.

70.

As to the grounds required for ordering a person’s surveillance via GPS, the Court notes that under art.100c(1) No.1(b), (2) of the Code of Criminal Procedure, such surveillance could only be ordered against a person suspected of a criminal offence of considerable gravity or, in very limited circumstances, against a third person suspected of being in contact with the accused, and if other means of detecting the whereabouts of the accused had less prospect of success or were more difficult. It finds that domestic law thus set quite strict standards for authorising the surveillance measure at issue.

71.

The Court further observes that under domestic law the prosecution was able to order a suspect’s surveillance via GPS, which was carried out by the police. It notes that in the applicant’s submission, only conferring the power to order GPS surveillance on an investigating judge would have offered sufficient protection against arbitrariness. The Court observes that pursuant to art.163f(4) of the Code of Criminal Procedure, which entered into force after the applicant’s surveillance via GPS had been carried out, systematic surveillance of a suspect for a period exceeding one month did indeed have to be ordered by a judge. It welcomes this reinforcement of the protection of the right of a suspect to respect for his private life. It notes, however, that already, under the provisions in force at the relevant time, surveillance of a subject via GPS has not been removed from judicial control. In subsequent criminal proceedings against the person concerned, the criminal courts could review the legality of such a measure of surveillance and, in the event that the measure was found to be unlawful, had discretion to exclude the evidence obtained thereby from use at the trial.

72 The Court considers that such judicial review and the possibility to exclude evidence obtained from an illegal GPS surveillance constituted an important safeguard, as it discouraged the investigating authorities from collecting evidence by unlawful means. In view of the fact that GPS surveillance must be considered to interfere less with a person’s private life than, for instance, telephone tapping (an order for which has to be made by an independent body both under domestic law and under art.8 of the Convention), the Court finds subsequent judicial review of a person’s surveillance by GPS to offer sufficient protection against arbitrariness. Moreover, art.101(1) of the Code of Criminal Procedure contained a further safeguard against abuse in that it ordered that the person concerned be informed of the surveillance measure he or she had been subjected to under certain circumstances.”

Before leaving the case of Uzun it is worthwhile noting that at paragraph 80 of the judgment the court concluded that the interference by way of the GPS surveillance was proportionate. The court noted in particular that, although the applicant had been subject to surveillance measure by different authorities amounting to a more serious interference in his private life, the GPS surveillance had been carried out for a relatively short period of some three months, and then essentially only at weekends when he was travelling in the car of his accomplice. It was not therefore total and comprehensive surveillance. The Court also took account of the fact that the surveillance related to very serious crimes namely the attempted murders of politicians and civil servants by bomb attacks. In all of those circumstances therefore the GPS surveillance had been proportionate to the legitimate aims which it pursued.

Following the hearing we afforded the parties the opportunity to make further submissions in relation to the scope of the “in accordance with the law” requirement. This was in the light of the applicant’s reliance upon on the case of R(Kambadzi) v SSHD [2011] UKSC 23; [2011] 1 WLR 1299. The applicant’s contention was that this authority supported the proposition that during the periods following the respondent’s failure to competently review the continuation of the tagging his continued tagging was not “in accordance with the law”. This proposition relied upon the public law error in those reviews or the failure to conduct them in accordance with the respondent’s policy.

The claimant in the case of Kambadzi was a citizen of Zimbabwe who, whilst present in the UK without leave, committed offences of assault and sexual assault leading to a sentence of 12 months imprisonment. Having served his sentence, the claimant was thereafter detained in Immigration Detention pending the making of a deportation order. Eventually a deportation order was made, and the claimant applied for judicial review seeking his release on the basis that his detention was unlawful as there had been a failure to carry out regular reviews of his detention pursuant to rule 9(1) of the Detention Centre Rules 2001 and the defendant’s policy. The Supreme Court held that as a result of the failure to comply with the policy in relation to undertaking lawful reviews the claimant’s detention had been unlawful during the periods when it had not been reviewed, and he was entitled to bring a claim for false imprisonment as a trespass to the person. It was accepted by the claimant in that case that at all times the well-known principles in relation to the lawfulness of continuing detention set out in the case of Hardial Singh had been complied with. However, it was equally accepted by the defendant that no reviews had been undertaken in respect of the claimant’s continuing detention and therefore the defendant’s policy had not been complied with. In addressing the question of the claimant’s claim for damages for false imprisonment Lord Hope set out at paragraph 35 of his judgment that the question was whether or not the review pursuant to the policy was essential to the legality of the continued detention of the claimant or whether it was a sufficient answer to that damages claim for the defendant to say that there was authority to detain throughout the claimant’s detention comprised in the terms of the statute.

Lord Hope went on to consider and analyse the question of the lawfulness of the failure to undertake reviews in accordance with the Rules and the policy, and whether this could support the provision of a remedy in the form of an action for false imprisonment for the claimant. He expressed his conclusions in the following terms:

“50.

The initial decision to detain will be held to be lawful if it is made under the authority of the Secretary of State pending the making of a deportation order. But it cannot be asserted in the light of what was said in Hardial Singh that the initial decision renders continued and indefinite detention lawful until the deportation order is made whatever the circumstances. Nor can it be said that it has that effect after the deportation order is made pending the person’s removal from the United Kingdom when the person is being detained under paragraph 2(3). The authority that stems from the initial decision is not unqualified.

51.

The question then is what is to be made of the Secretary of State’s public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact-sensitive. In this case we are dealing with an executive act which interferes with personal liberty. So, one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute. Unlike the 2001 Rules, chapter 38 of the manual is concerned with the lawfulness of the detention. That is made clear in the opening paragraphs: see para 18 of the above. It has been designed to give practical effect to the Hardial Singh principles to meet the requirement that, to be lawful, the measures taken must be transparent and not arbitrary. It contains a set of instructions with which officials are expected to comply: see paragraph 1(3) of Schedule 2 to the 1971 Act. As I see it, the principles and the instructions in the manual go hand in hand. As Munby J said in para 68, the reviews are fundamental to the propriety of continued detention. The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect o the principles. They are not only commendable; they are necessary.

52.

The relationship of the review to the exercise of the authority is very close. They too go hand in hand. If the system works as it should, authorisation for continued detention is to be found in the decision taken at each review. References to the authority to detain in the forms that were issued in the appellant’s case illustrate this point. Form IS 151 F, which is headed “Monthly Progress Report to Detainees”, concludes at the top of p3 of 3 with the words “Authority to maintain detention given”, on which the officer’s comments are invited and beneath which his decision is recorded. The discretion to continue detention must, of course, be exercised in accordance with the principles. But it must also be exercised in accordance with the policy stated in the manual. The timetable which para 38.8 sets out is an essential part of the process. These are limitations on the way the discretion may be exercised. Following the guidance that R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139 provides (see paras 39 and 40 above), I would hold that if they are breached without good reason continued detention is unlawful. In principle it must follow that tortious remedies will be available, including the remedy of damages.

53.

There remains however the question of causation: what if the Secretary of State is able to show that, despite the failure to give effect to the policy, continued detention was nevertheless compatible with the Hardial Singh principles? Is it an answer for the Secretary of State to say that, as he could have authorised continued detention had lawful procedures been followed, no tort was committed? Is there room in such a situation for an award of damages?

54.

These questions are brought into sharp focus in this case. Mr Husain accepts that the Secretary of State would have been able to justify the need for the appellant’s detention under the Hardial Singh principles at all times had he been required to do so. But in Roberts v Chief Constable of the Cheshire Constabulary [1991] 1 WLR 662,667 Clarke LJ said that it was nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified detention. The statutory requirement with which he was dealing in that case existed in order to ensure that members of the public were not detained except in certain defined circumstances. In all other circumstances, he said, every member of the public is entitled to his liberty. I would apply that reasoning to this case. It is true that the reviews were not required by the statute. But there was a public law duty to give effect to the provisions about reviews in the manual. If the reviews were not carried out – unless for good reason, which is not suggested in this case – continued detention was not authorised by the initial decision to detain. It is no defence for the Secretary of State to say that there were good grounds for detaining the appellant anyway. Unless the authority to detain was renewed under the powers conferred by the statute he was entitled to his liberty. The decision in Lumba [2011] 2 WLR 671 leads inevitably to this conclusion.”

In the applicants’ further submissions, the question of whether a distinction should be drawn between on the one hand the power to detain in Kambadzi, and, on the other hand, the duty to impose an electronic monitoring condition pursuant to paragraph 2 of Schedule 10 of the 2016 Act should be drawn so as to distinguish between the operation of these two regimes. The applicant drew attention to the decision of the Supreme Court in the case of R(O) v SSHD [2016] UKSC 19 which related to a claimant who had been detained pursuant to paragraph 2(1) of Schedule 3 to the Immigration Act 1971, which provides that where a recommendation for deportation made by a court is in force in respect of a person (and that person is not detained in pursuance of the sentence or order of a court) the person shall be detained pending the making of a deportation order unless the SSHD directs him to be released pending further consideration of his case or he is released on bail. During a period of the claimant’s detention the defendant had unlawfully failed to apply her policy relating to detention of the mentally ill pending deportation. In the Court of Appeal, it had been concluded that paragraph 2(1) of Schedule 3 of the 1971 Act indicated that a person “shall” be detained there was no discretionary decision about the detention of the claimant which was capable of being vitiated by the unlawful failure to apply a policy. In the Supreme Court Lord Wilson JSC disagreed with this approach. Although there was a difference in the language of paragraphs 2(1) of Schedule 3 from that in paragraph 2(2) of Schedule 3 of the 1971 Act the preferable analysis was that “the mandate to detain conferred by paragraph 2(1)… is subject to two conditions”. The first condition was compliance with Hardial Singh principles. The second condition was that the defendant would consider in accordance with her own policy whether to exercise the power expressly given to her to direct release. Thus, it was concluded that the failure to comply with the policy during the period concerned was unlawful.

The applicant further submitted that there were other authorities in support of the contention that a breach of public law was capable of forming the basis of a contention that an interference with Article 8 was not “in accordance with the law”. The principle authority upon which the applicant relies is the case of Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538, which was a case brought by a life sentence prisoner in relation to a period in 2007 when he was provided with only 30 minutes open air recreation every day whilst detained in a segregation unit, whereas under paragraph 2(ii) of Prison Service Order 4275 he was entitled to a minimum of one hour in the open air every day. The judge at first instance, Sweeney J, concluded that Article 8(1) was not engaged on the facts of the case. That was a conclusion with which Richards LJ (giving the judgment in the Court of Appeal with which the other members of the court agreed) accepted. Richards LJ went on, however, to conclude that had he been satisfied that Article 8(1) was engaged then the defendant would have had difficulties in respect of the provisions of Article 8(2). At paragraph 32 of his judgment, he recorded as follows:

“32.

PSO4275 was a published policy to guide the exercise of prison officers’ discretion under Rule 30 of the Prison Rules 1999. The prison officers at HMP Frankland failed to give effect to the mandatory requirements of PSO4275 as regards to the opportunity to be given to those in the segregation unit to spend a minimum of 1 hour in the open air. If they did not have good reason for that failure, I have little doubt that in a public law challenge they would be found to have acted unlawfully. One does not need to look further than the passages in R(Lumba) v Secretary of State for the Home Department sighted by Ms Kaufmann for the proposition that a decision-maker must follow his published policy unless there are good reasons for not doing so; a proposition that applies equally to a policy published by the Secretary of State for the guidance of those exercising powers under rules made by him… When determining whether an interference is “in accordance with the law”, even the Strasbourg Court looks at domestic law (see, for example, Eriksson v Sweden (1989) 12 EHRR 183 at [62] – [63]); a fortiori the national court must look at domestic law when deciding whether the requirement is satisfied; I can see no possible basis for contending that the principles of public law do not form part of domestic law for this purpose.”

The applicant has also drawn attention to other cases in different contexts in which the respondent has conceded that a public law error in decision making justified the conclusion that an interference with Article 8 caused by the decision in question was not “in accordance with the law”. In the context of a prisoner’s transfer to a particular unit within a prison, the failure to provide an opportunity to comment either in principle or upon the relevant policy which had yet to be published at the date of the decision, led to the respondent conceding that the decision to transfer was not in accordance with the law in R (Syed) v Secretary of State for Justice [2017] 4 WLR 101. This position was subsequently confirmed when the Court of Appeal considered that case. In relation to the removal of a claimant from other inmates in breach of the Youth Offender Institution Rules 2000 it was, again, conceded that this public law error rendered the decision not “in accordance with the law” for the purposes of Article 8 see: R (AB) v Secretary of State for Justice [2017] 4 WLR 153. Finally in R(HM) v Secretary of State for the Home Department [2022] 1 WLR 5030 it was again conceded that the application of a blanket policy in relation to the search and seizure of mobile phones together with their data, which was a breach of public law, was also conceded to render the interference with Article 8 constituted by the application of that policy not “in accordance with the law”.

Returning to the structured approach derived from the case of Razgar, if an interference with Article 8 is concluded to have been in accordance with the law, then the fourth question to be addressed is whether or not that interference is necessary in the democratic society. If it is then it is necessary to finally consider whether the interference is proportionate with the legitimate aim which is sought to be achieved by the decision under challenge.

Beyond the contentions in relation to human rights, and to some extent integrally linked with them, the applicant places reliance upon the public law principles set out in Padfield v Ministry of Agriculture Fisheries and Food [1968] AC 997. This principle is that where a statute confers a discretion upon a decision-maker, that discretion must be exercised so as to promote and not to defeat the object of the legislation which has granted the discretion. In R v Braintree District Council ex parte Halls [2000] 32 HLR 770 Laws LJ stated that the question required by the Padfield principle was not whether the exercise of discretion was incapable of promoting the policy of the relevant act but rather “what was the decision-maker’s purpose in the incident case and was it calculated to promote the policy of the Act?”.