Mustafa Taskiran, R (on the application of) v Secretary of State for the Home Department

Mr Justice Lavender: (1) Introduction

1. The claimant applied, with permission granted by the court, for judicial review of the imposition and maintenance of an electronic monitoring condition of his immigration bail imposed on 10 February 2023 (“the 2023 EM condition”).

2. The claimant also sought judicial review of the imposition and maintenance of the electronic monitoring condition of his immigration bail imposed on 17 September 2018 (“the 2018 EM condition”). However, there were issues as to: (1) whether the claimant had been given permission to apply for judicial review of the imposition or maintenance of the 2018 EM condition; (2) if not, whether the claimant should be given an extension of the time limited for renewing his application for permission to amend his claim form and statement of facts and grounds, following the refusal of permission by Sheldon J; (3) if the extension of time were granted, whether the claimant should be given permission to amend his statement of facts and grounds so as to challenge the imposition and maintenance of the 2018 EM condition; and (4) if permission to amend were granted, whether the imposition or maintenance of the 2018 EM condition was unlawful. (2) Background (2)(a) The Claimant

3. The claimant was born on 1 February 1977 and was at birth a Turkish national. He has suffered from mental health problems throughout his life. He entered the United Kingdom with his family on 20 June 1990. He was granted indefinite leave to remain as a refugee on 8 March 1994.

4. The claimant committed 54 offences in this country between 1994 and 2014. They were mostly offences of dishonesty, save for the last two. A first deportation order was served on the claimant in 2009.

5. Meanwhile, however, on 6 February 2002 the claimant’s Turkish nationality was withdrawn, apparently because he had not completed his national service in Turkey.

6. On 29 January 2014 the claimant was sentenced at Snaresbrook Crown Court to 6 years and 9 months’ imprisonment for one offence of rape and one offence of sexual assault. It was not in issue before me that the claimant is someone who should be deported from this country, if it is possible to deport him. (2)(b) The Claimant’s Detention from 2016 to 2018 and Bail from 2018

7. The claimant was released from prison on 16 December 2016, but detained by the Secretary of State until 17 September 2018, when the Secretary of State granted immigration bail, subject to the 2018 EM condition and to a condition imposing a curfew requirement.

8. Meanwhile, inter alia: (1) On 30 October 2017 the Divisional Court dismissed the claimant’s first application for judicial review of his detention: Taskiran v Secretary of State for the Home Department [2017] EWHC 2679 (Admin) . The Divisional Court’s judgment gives a full account of the claimant’s immigration history to that point and sets out the efforts which had been made by then to secure the claimant’s removal to Turkey. As at 30 October 2017, the Secretary of State was seeking to make use of the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation OJ L 134, 7.5.2014, pp. 3-27 (“the EURA”) and the Divisional Court took the view that there was a prospect that the claimant would be removed within a reasonable time. (2) On 6 November 2017 the Secretary of State refused the claimant’s application for indefinite leave to remain in the United Kingdom as a stateless person. The Secretary of State acknowledged that the claimant was stateless, but refused his application by reason of his conviction for an offence for which he had been sentenced to at least 4 years’ imprisonment. (3) On 23 February 2018 the Secretary of State made a deportation order. The claimant’s appeal against that order was dismissed by the First-tier Tribunal on 16 April 2018 and a further appeal was dismissed by the Upper Tribunal on 5 September 2018. (4) On 24 April 2018 the claimant was interviewed by the Turkish authorities, but he was refused an emergency travel document (“an ETD”) because he had been deprived of Turkish citizenship. (5) The claimant made a further application for judicial review of his detention and that application was due to be heard on 20 September 2018, i.e. 3 days after he was released on immigration bail, subject to the 2018 EM condition.

9. In relation to the 2018 EM condition, the claimant was initially fitted with an RF device, but this was changed to a fitted GPS device on 7 February 2021. I addressed the various forms of device and their effect on individuals in paragraphs 9 to 16 of my judgment in ADL v Secretary of State for the Home Department [2024] EWHC 994 (Admin) (“ ADL ”). I do not repeat what I said in those paragraphs.

10. The curfew requirement was initially one of the requirements of the claimant’s licence following his release from prison, but from 17 September 2018 it was also a condition of his immigration bail. The curfew was initially from 8.30 pm to 7 am and from 2 to 3 pm. The afternoon curfew requirement was removed in about April 2019 and the curfew requirement as a whole was removed on 26 April 2022.

11. Meanwhile, on 5 March and 18 April 2019 the claimant’s then lawyers, Duncan Lewis, wrote to request the removal of the 2018 EM condition. This request was refused on 29 April 2019. There was no challenge to this decision.

12. On an unspecified date the claimant was advised by Duncan Lewis that there was no merit in a proposed challenge to the 2018 EM condition and he did not make such a challenge. However, the claimant did at some stage challenge the curfew requirement. This challenge was dismissed by HHJ Backhouse in paragraphs 97 to 100 of her judgment of 12 August 2020 on the claimant’s claims for damages for false imprisonment.

13. The Secretary of State then conducted reviews of the 2018 EM condition on 24 April, 5 August and 18 August 2022. (2)(c) Efforts to Deport the Claimant

14. Turkey suspended its membership of the EURA on 24 July 2019.

15. As will be seen, the Secretary of State has said in her amended detailed grounds of defence that she has not given up on the prospect of removing the claimant to Turkey and that she intends to remove him whenever she is able to do so. However, the Secretary of State has not filed any evidence and neither in the agreed chronology, set out at paragraph 7 of the amended detailed grounds of defence, nor elsewhere has the Secretary of State identified any steps which she has taken since 11 March 2020 to persuade the Turkish authorities to issue an ETD. (2)(d) The Claimant’s Detention and Bail in 2023

16. The claimant was detained by the Secretary of State from 12 January 2023 until he was granted bail on 10 February 2023 by First-tier Tribunal Judge Chinweze. A monthly progress report dated 9 February 2023 stated, under the heading “Current barrier to removal”, that the claimant had lost his Turkish nationality and stated: “Therefore, as a stateless person you can not at present be removed and your removal directions for the 12 February 2023 were deferred.”

17. The Secretary of State has since conceded that the claimant’s detention between 12 January and 10 February 2023 was unlawful.

18. In imposing the 2023 EM condition on the claimant’s bail, Judge Chinweze said as follows: “… The applicant is assessed as posing a high risk of reoffending. He has 27 convictions for 54 offences between 4 August 1994 and 29 January 2016. However, I am satisfied the risk can be addressed by an electronic monitoring condition and a condition of reporting as and when directed to by the respondent. I was asked by Ms Jegarajah to remove the electronic monitoring condition as it was disproportionate in circumstances where there is no prospect of removing the applicant. However, I have no discretion to do so under schedule 10 of the Immigration Act 2016 as the deportation order of 23 February 2018 is still in force and the respondent has not indicated that it is impracticable to electronically monitor the applicant. The applicant can argue the condition is in breach of his human rights but that was not the application that was before me.”

19. Judge Chinweze directed, pursuant to paragraph 6(3) of Schedule 10 to the Immigration Act 2016 (“Schedule 10”), that the management of the claimant’s bail following his release was transferred to the Secretary of State. The claimant was released on 13 February 2023 with a fitted GPS device. On 19 March 2024 this was changed to a non-fitted device.

20. In the period from 13 February 2023 to 10 June 2024 (which, as will be seen, was the date of the claimant’s “further amended statement of facts and grounds”), the Secretary of State conducted reviews of the 2023 EM condition on 19 May, 8 September and 5 December 2023 and on 13 March 2024. I will refer to these as the first, second, third and fourth reviews.

21. The record of the first, second and fourth reviews contains a box for “Date monitoring started” in which the date given is 13 February 2023.

22. The record of each of the first three reviews stated, inter alia, as follows: “I have considered the information on this case to determine if vulnerabilities or safeguarding issues exist which would mean that the current EM bail condition might be disproportionate. However, I have not identified any previously unknown vulnerabilities or other factors that would affect the decision to sustain the electronic monitoring condition.”

23. The record of the fourth review, contained the first of these sentences and then went on to consider the evidence as to the claimant’s mental health problems, concluding that: “However, at present there has not been anything raised that would affect the decision to sustain the electronic monitoring condition.”

24. The record of the first review also stated, inter alia, as follows: “In line with the agreed principles for assessing harmfulness, in particular considering Mr Taskiran’s Offending History, I have decided it remains proportionate to maintain the existing electronic monitoring conditions on this occasion. In making this decision, I have examined whether there may be safeguarding issues or vulnerabilities that may make the existing electronic monitoring regime disproportionate. However, on this occasion, I have not identified that any such issues apply. Barriers for removal include: Outstanding Asylum Claim This decision also considers the period Mr Taskiran has already been monitored for as well as taking account of how compliant they have been with their Immigration Bail conditions, as outlined in the bail policy and guidance and as assessed above. On this occasion, I have determined that compliance overall is currently of a good standard. Although this does not itself outweigh my current decision to maintain the existing electronic monitoring arrangements, ongoing compliance may support a different outcome at a future review.” “EM review approved- due to the risks posed and for the purposes of public protection, I agree to maintain EM at this time.”

25. The statement about barriers to removal was inaccurate, in that the claimant did not have an outstanding asylum claim. Neither this record nor the records of the other three reviews mentioned: (1) the real barrier to removal, which was the unwillingness of the Turkish authorities to facilitate removal by issuing an ETD; (2) the fact that no action had been taken to attempt to obtain an ETD since 11 March 2020 (or, if any such action had been taken, what it was); or (3) when or how it was anticipated that the claimant would be deported.

26. The record of the second review included the first two paragraphs which I have quoted from the first review and also stated, inter alia: “This decision also considers the period Mr Taskiran has already been monitored for as well as taking account of how compliant they have been with their Immigration Bail conditions, as outlined in the bail policy and guidance and as assessed above. On this occasion, I have determined that compliance overall is currently of a good standard. Although this does not itself outweigh my current decision to maintain the existing electronic monitoring arrangements, ongoing compliance may support a different outcome at a future review. Barriers to Removal: - Asylum; DO Appeal”

27. This last statement was inaccurate in the following respects: (1) The claimant did not have an outstanding asylum claim. (2) The claimant did not have an outstanding appeal against his deportation order.

28. The record of the third review stated that the claimant had been out of contact since 26 November 2023 and that in those circumstances it was deemed necessary to maintain the EM condition. However, the claimant’s evidence, which was not contradicted by evidence from the Secretary of State, was that his EM device had stopped working in November 2023, he had reported this to the Home Office, the device was not repaired until the latter part of February 2024, he had continued during this period to report to the Home Office every Tuesday and he had not changed his address or telephone number during this period. It is accepted by the Secretary of State that the claimant was not responsible for his device being out of contact between 26 November 2023 and 23 February 2024.

29. The record of the fourth review stated, inter alia, as follows: “In line with the agreed principles for assessing harmfulness, in particular considering Offending History, I have decided it is proportionate for Mr Taskiran to be transitioned to a non-fitted device when they become widely available” “This decision also considers the period Mr Taskiran has already been monitored for as well as taking account of how compliant they have been with their Immigration Bail conditions, as outlined in the bail policy and guidance and as assessed above.”

30. The claimant’s fitted device was replaced with a non-fitted device on 19 March 2024. (3) The Law (3)(a) The Law: Summary

31. I addressed the law and policy relating to EM conditions in paragraphs 17 to 53 of my judgment in ADL . Again, I do not repeat what I said in those paragraphs. However, it is relevant to note the following: (1) Immigration bail can be granted by the Secretary of State or by the First-tier Tribunal: see paragraph 1 of Schedule 10. (2) In particular, sub-paragraph 1(1) of Schedule 10 provides that, in a deportation case, immigration bail may be granted if: “(b) the person is being detained under paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation),” or “(d) the person is being detained under section 36(1) of the UK Borders Act 2007 (detention pending deportation).” (3) In addition, sub-paragraph 1(2) of Schedule 10 provides that: “The Secretary of State may grant a person bail if the person is liable to detention under a provision mentioned in sub-paragraph (1).” (4) Sub-paragraph 1(3) of Schedule 10 provides that the First-tier Tribunal may grant bail to a person who is being detained under any of the provisions listed in sub-paragraph 1(1). (5) Sub-paragraph 1(5) of Schedule 10 (which I did not have to consider in my judgment in ADL ) provides as follows: “A person may be granted and remain on immigration bail even if the person can no longer be detained, if— (a) the person is liable to detention under a provision mentioned in sub-paragraph (1), or” (6) Sub-paragraph 1(8) of Schedule 10 (which again I did not have to consider in my judgment in ADL ) provides as follows: “A grant of immigration bail to a person ends when— (a) in a case where sub-paragraph (5) applied to the person, that sub-paragraph no longer applies to the person,” (7) Sub-paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (“Schedule 3”, another provision which I did not have to consider in my judgment in ADL ) provides as follows: “Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on immigration bail under Schedule 10 to the Immigration Act 2016 .” (8) In a deportation case, immigration bail must be granted subject to an EM condition unless the Secretary of State considers that to impose an EM condition on the person would be: (a) impractical; or (b) contrary to the person’s Convention rights: see paragraph 2 of Schedule 10. (9) When the First-tier Tribunal grants bail, it can, as it did in this case, direct that the power to amend, remove or add conditions be exercisable by the Secretary of State instead of the First-tier Tribunal: see sub-paragraphs 6(1), (3) and (4) of Schedule 10. (10) In a deportation case, subparagraph 7(2) of Schedule 10 imposes on the Secretary of State: (a) a duty to remove an EM condition if the Secretary of State considers that: (a) it would be impractical for the person to continue to be subject to the EM condition; or (b) it would be contrary to that person’s Convention rights for the person to continue to be subject to the EM condition; and (b) a duty not to remove the EM condition in any other circumstance. (11) Schedule 10 came into force on 15 January 2018, save that the provisions of Schedule 10 which impose a duty on the Secretary of State or the First-tier Tribunal to impose, or not to impose, and to remove, or not to remove, an EM condition did not come into effect until 31 August 2021. (12) The Secretary of State’s Bail Guidance requires that EM conditions are reviewed on a quarterly basis. (A point which it was unnecessary for me to address in my judgment in ADL is that this requirement was first introduced in version 6.0 of the Bail Guidance, which came into effect on 16 November 2020.) (13) The Bail Guidance also contains the following non-exclusive list of relevant factors to be considered when reviewing an EM condition: “• the overall time spent on EM • the time on the particular device type • the risk of absconding • the risk of harm posed to the public • the risk of re-offending • the expected time until removal • any vulnerabilities • compliance with immigration bail” (14) It is the Secretary of State’s policy to retain trail data (i.e. the data gathered by electronic monitoring) for 6 years, but: (a) the Secretary of State will consider requests for the deletion of trail data; (b) the Secretary of State will delete the trail data in any case where she accepts that an EM condition was imposed or maintained erroneously; and (c) the Secretary of State accepted in ADL that, if I held that any of the EM conditions in that case were unlawful for any period of time, the Secretary of State would delete the relevant trail data for that period. I did not understand the Secretary of State to adopt a different position in this case.

32. I considered at some length in ADL (at paragraphs 161-167 and 182-236) the consequences of a failure to carry out quarterly reviews of an EM condition. I agreed with the Upper Tribunal in R (Nelson) v Secretary of State for the Home Department [2024] UKUT 00141 (IAC) (“ Nelson ”) that, if the Secretary of State fails to conduct a quarterly review on time, that has the result that the EM condition is unlawful and is not “in accordance with the law” for the purposes of Article 8 ECHR for the period after the review should have been conducted until the delayed review is conducted. (3)(b) Hardial Singh and the Power to Grant Immigration Bail

33. This case has required consideration of the relationship between the power to grant immigration bail and the well-known Hardial Singh principles which apply to immigration detention, and which include the principles that: the individual may only be detained for a period which is reasonable in all the circumstances; and, if it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, she should not seek to exercise the power of detention: see R v Governor of Durham Prison, Ex p. Hardial Singh [1984] 1 WLR 704 (“ Hardial Singh ”).

34. A distinction has been drawn in this context between the question whether there is jurisdiction to grant immigration bail and the exercise of that jurisdiction when it exists. R (Kaitey) v Secretary of State for the Home Department [2022] QB 695 (“ Kaitey ”), a case which concerned paragraph 1(2) of Schedule 10, is authority for the proposition that the Hardial Singh principles do not apply to the exercise of the jurisdiction to grant immigration bail. Singh LJ, with whom the other judges agreed, said as follows in paragraphs 154 and 157 of his judgment in Kaitey : “154. I do not accept the submission that the Hardial Singh principles must be imported into the context of the grant of bail. The whole point about the Hardial Singh principles is that they were developed in the context of administrative detention. A person on bail is not in detention. He is at liberty, although there may be conditions attached to his bail …” “157. What the claimant (and BID) seek in advancing Ground 3 is to impose the temporal limitation in the Hardial Singh principles. Although this was not how it was put by BID, the argument must be that, because a person cannot be deported within a reasonable time, they cannot be lawfully detained and therefore no bail can be granted either. In my view, the conclusion simply does not follow from the premise. There is all the world of difference between concluding that a person can no longer be lawfully detained because they cannot be deported within a reasonable time; and the conclusion that they cannot be the subject of bail while they are not detained. The two things are clearly different. There is no logical connection between them.”

35. It is relevant to note section 67 of the Nationality, Immigration and Asylum Act 2002 , which provides as follows: “(1) This section applies to the construction of a provision which— (a) does not confer power to detain a person, but (b) refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts. (2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that— (a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement, (b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or (c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.”

36. That section, which applies to sub-paragraphs 1(2) and (5) of Schedule 10, was considered by the House of Lords in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207 (“ Khadir ”), albeit in a different context, namely paragraphs 16 and 21 of Schedule 2 to the Immigration Act 1971 and the question whether, in the words of paragraph 21, the claimant was “a person liable to detention … under paragraph 16”. Lord Brown, with whom the other law lords agreed, said as follows in paragraphs 32 and 33 of his judgment in Khadir : “32. The true position in my judgment is this. “Pending” in paragraph 16 means no more than “until”. The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that the removal must be “pending”, still less that it must be “ im pending”. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i e throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains “liable to detention” and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21.

33. To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot); nothing about its existence . True it is that in Tan Te Lam [1997] AC 97 the Privy Council concluded that the power itself had ceased to exist. But that was because there was simply no possibility of the Vietnamese Government accepting the applicants' repatriation; it was effectively conceded that removal in that case was no longer achievable. Once that prospect had gone, detention could no longer be said to be “pending removal”. …”

37. In reliance on these paragraphs, the appellant in Kaitey sought to argue, inter alia, that there had been no prospect of his removal and therefore no jurisdiction to grant him immigration bail. Singh LJ said as follows in paragraph 148 of his judgment: “The reason why Ground 2 has no real prospect of success is that the law requires there to be only “some prospect” of removal of the claimant at some point. Mr Tam accepts on behalf of the Secretary of State that, if there were truly no prospect of removal, then, even in accordance with the House of Lords decision in Khadir , there is no legal power to detain at all. Once that point is reached, if it is, then he accepts that there is also no power to grant bail. But, on the material which was before the trial judge, that was not the Secretary of State’s position and the judge must have agreed. …”

38. The Privy Council case referred to by Lord Brown in paragraph 33 of his judgment in Khadir is Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] A.C. 97 (“ Tan Te Lam ”), which was also considered by Singh LJ in his judgment in Kaitey , at paragraphs 75 to 77. One of the issues considered by the Privy Council in Tan Te Lam was whether it was for the defendant (subject to the possibility of judicial review of his decision) or for the court to determine whether there was no prospect of the claimant’s removal to Vietnam. The Privy Council decided that this was a matter for determination by the court, because it was a jurisdictional fact. In a passage cited by Lord Brown in paragraph 24 of his judgment in Khadir , Lord Browne-Wilkinson, who gave the judgment of the Privy Council, said as follows: “The issue . . . in the present case is whether the determination of the facts relevant to the question whether the applicants were being detained ‘pending removal’ goes to the jurisdiction of the director to detain or to the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13D, the director has no power at all.”

39. Another case considered by Singh LJ in his judgment in Kaitey (at paragraphs 85 to 96) was B (Algeria) v Secretary of State for the Home Department (No 2) [2018] AC 418 (“ B (Algeria) ”). In particular, Singh LJ said as follows in paragraphs 90 and 91 of his judgment in Kaitey : “90. In my view, what is of crucial importance to the reasoning of Lord Lloyd-Jones JSC is what he said at para 30: “It is common ground that being ‘detained’ is a condition precedent to the exercise of the power to grant bail conferred by paragraphs 22 and 29 of Schedule 2 to the 1971 Act .” In other words, that case concerned the interpretation of the word “detained” and not the phrase “liable to detention”.

91. Lord Lloyd-Jones JSC concluded, at para 31, that the word “detained” in those paragraphs refers to “lawfully authorised detention.” One of the reasons for that conclusion was, as he explained at para 32, that a person who is in breach of the conditions of bail may be re-detained but this would not be possible in the absence of a subsisting power to detain.” (4) The Claim (4)(a) The Claim Form

40. The claim form was issued on 10 May 2023. The claimant described the decision which he sought to have judicially reviewed as: “The decision of the Defendant to detain the Claimant from 12 January 2023 to 10 February 2023, and the on-going imposition of unreasonable and unlawful bail conditions (electronic tagging) on the Claimant.”

41. The date of the decision was given as 10 February 2023, which was the date on which the 2023 EM condition was imposed.

42. “The Immigration and Asylum Chamber (IAC)” was named in the claim form as an interested party and the claim form was served on the First-tier Tribunal, although it was later removed as an interested party by Lang J’s order of 12 March 2024.

43. The statement of facts and grounds contained the following: “7. In relation to tagging, the following are the Claimant’s specific complaints. A. He has been tagged since 2018. B. He cannot sleep properly with the device (tag) on. C. He has difficulty putting his clothes on because of the device. D. The device is heavy, bulky, and uncomfortable. E. The device needs to be charged regularly. F. He must cover his ankle when he is in public so that nobody can see the device on his ankle. G. He is suffering from depression because of the device. H. The device causes him to experience intense physical and mental suffering in breach of his human rights- Article 3 of ECHR Judicial review grounds.

8. The Claimant seeks a Declaration, in addition to other relief, that his detention from 12 th January 2023 to 10 th February 2023, was unlawful and that the bail condition imposing electronic tagging on him is unreasonable; cruel, inhuman and degradation in the circumstances of this case.” “77. Further, it is arguable that the bail conditions imposed on the Claimant are unreasonable, unlawful, and/or in breach of the Claimant’s human rights- Article 3 of ECHR.”

44. Although the statement of facts and grounds referred to the fact that the claimant had been “tagged” since 2018, neither it nor the claim form contained a clear statement that the claimant was seeking to challenge either the imposition of the 2018 EM condition on 17 September 2018 or its maintenance thereafter until the claimant was detained on 12 January 2023.

45. Also, the claim form did not contain either an application for an extension of the time for filing the claim form or an explanation of why the claimant contended that it was unnecessary to apply for such an extension. (4)(b) The Grant of Permission

46. On 21 July 2023 HHJ Auerbach granted permission to apply for judicial review. In his observations, he said as follows: “… I am doubtful that all of the points of challenge in relation to the electronically monitored tag are arguable. Some of the matters complained of are not peculiar to the claimant’s case, and it is not contended that the use of such tags per se is unlawful. However, the overall length of time that the claimant has been tagged is arguably a distinguishing factor in this case, which is also said to be the basis for the contention that it amounts itself to an unlawful form of detention. …”

47. The Secretary of State filed detailed grounds of defence dated 2 October 2023. In a skeleton argument dated 27 February 2024, the Secretary of State said: “In this claim, which was issued on 10 th May 2023 (CB/3), the Claimant sought (CB/22, para 8): (i) a declaration that he was unlawfully detained by the Defendant between 12 th January 2023 and 10 th February 2023, and (ii) a declaration that the continued imposition of electronic monitoring (also known as ‘tagging’) on him was unlawful.” (4)(c) The Proposed Amendment

48. In draft amendments to the claim form and a draft amended statement of facts and grounds dated 1 March 2024 the claimant, inter alia: (1) made clear for the first time that he wished to challenge the decision to impose the 2018 EM condition and the maintenance of that condition thereafter, as well as the imposition of the 2023 EM condition and its maintenance to the date of the draft amended statement of facts and grounds; and (2) amended the grounds on which he sought to challenge the EM conditions, in particular by alleging, as ground 1, that the imposition of an EM condition was unlawful.

49. On 12 March 2024 Lang J gave directions staying this case until the handing down of my judgment in ADL and giving the claimant permission to file and serve a revised draft amended statement of facts and grounds following my judgment in ADL .

50. I handed down my judgment in ADL on 15 May 2024. The claimant filed and served a draft “further amended statements of facts and grounds” dated 10 June 2024, in which ground 1 was expressed as follows: “106. The imposition of EM, in the following three forms was unlawful as the Claimant could not be detained pending deportation under Paragraph 1 of Schedule 10 of the 2016 Act , as there is no prospect of his removal from the UK to Turkey: …

107. The Defendant agrees that the Claimant is stateless. There is no evidence from the Defendant of any other attempts to deport him there since his last interview by the Turkish authorities on 24 April 2018. The EURA position relied on by the Divisional Court in 2017 is no longer available and no other progress has been identified. The burden is on him to identify the steps taken to deport him.

108. In those circumstances deportation was highly unlikely. Any proper interpretation of the applicable legislation carries an implied limitation that EM could not be imposed indefinitely. To these aforementioned reasons, the EM was unlawful at the date of imposition and throughout in all three of three forms.”

51. On 23 September 2024 Sheldon J refused permission to the claimant to amend his claim form and statement of facts and grounds to challenge decisions by the Secretary of State which pre-dated 10 February 2023. In refusing permission, he said as follows: “The challenge to the period before 10 February 2023 is refused. The challenge would be to different decisions, and for an entirely different period. There was no continuing act from the period before 10 February 2023 as the Claimant was detained during the period 12 January 2023 to 10 February 2023, and so the earlier electronic tagging came to an end as a result of the detention. The imposition of electronic tagging following the Claimant’s release from detention was a new decision. Further, there was very considerable delay between the issuing of the proceedings (9 May 2023) and the application to amend the claim (1 March 2024). In these circumstances, it would not be just for the Claimant to add to the extant claim matters that could have been raised when that claim was originally issued. Further, had the Claimant sought to challenge decisions taken before 10 February 2023 by issuing proceedings on 1 March 2024, that challenge would have been considerably out of time. Any claim for damages under the Human Rights Act would also have been out of time, as the claim would have been brought more than one year from when the alleged contravention occurred, and there is no reason to extend time.”

52. However, Sheldon J permitted the claimant to amend his claim form and statement of facts and grounds insofar as he sought to challenge decisions made by the Secretary of State since 10 February 2023.

53. Following Sheldon J’s decision, the claimant, as directed, filed a “further further amended statement of facts and grounds” dated 18 November 2024, although this was not entirely consistent with Sheldon J’s order, since it continued to include aspects of the challenge to the 2018 EM condition. It is unnecessary to refer further to this document, since its sole purpose was to set out those amendments for which permission had been given, which can be found in the further amended statement of facts and grounds. (4)(d) The Renewed Application

54. On 28 October 2024 the claimant filed a notice of renewal of his application for permission to amend his claim form and statement of facts and grounds so as to challenge the imposition and maintenance of the 2018 EM condition. In the grounds for renewal, the claimant asserted for the first time that HHJ Auerbach had granted permission for him to apply for judicial review of those matters. I heard the renewed application together with the application for judicial review. (4)(e) The Amended Detailed Grounds of Defence

55. The Secretary of State said as follows in response to ground 1 in her amended detailed grounds of defence dated 19 December 2024: “29. C claims that his EM since 10 th February 2023 has been unlawful (para 107 of his further amended grounds). The premise of ground 1 is that C’s EM is unlawful because C claims that his “ deportation ” to Turkey is “ highly unlikely ” (para 109).

30. D does not necessarily accept that C’s removal to Turkey is highly unlikely. C remains subject to a deportation order, which means that he is required to leave the UK. D has made efforts over the years with the Turkish authorities to persuade them to accept the return of C to Turkey, as set out in the chronology below para 7 of the detailed grounds of defence dated 2 nd October 2023 (CB/69-74). So far D has not been able to remove C to Turkey, but she has not given up on the prospect of so doing, and intends to remove him whenever she is able to do so.

31. However, even if C were correct that deportation/removal to Turkey was highly unlikely or that there was no prospect of his removal to Turkey at all, that would have no bearing on the legality of his EM. Because C still has a deportation order dated 23 rd February 2018 in force against him, he remains liable to detention under para 2(3) of Schedule 3 to the Immigration Act 1971 , and therefore has to be subject to an EM condition unless D considers that the condition is impractical or breaches his ECHR rights (see the law above), which D does not. C would not be subject to EM if he successfully applied to have the deportation order revoked, but he has not made any such successful application. He made an application for revocation of the deportation order very recently, on 7 th November 2024, but that application has not yet been considered by the Home Office, let alone granted. Therefore, the deportation order remains in force against C. Accordingly, D remains fully entitled in law to subject him to an EM condition, and indeed must subject him to such a condition (given that D does not consider that one of the limited exceptions (impracticality or breach of ECHR rights) applies).” (5) The Grounds for Seeking Judicial Review

56. The claimant advanced four principal grounds for seeking judicial review, which apply to both the 2018 and 2023 EM conditions and which can be summarised as follows: (1) I have already set out the parties’ pleaded cases in relation to ground 1. (2) Ground 2 is that the Secretary of State: (a) failed to undertake quarterly reviews of the 2018 and 2023 EM conditions; (b) when she did conduct reviews, failed to identify how she had addressed the issues arising under paragraph 7(2) of Schedule 10; and/or (c) failed to take relevant matters into account. (3) Ground 3, which overlaps with ground 2, is that the Secretary of State failed to give reasons for her decisions and/or failed to conduct reviews. It is alleged that the Secretary of State acted unlawfully in: (a) failing to give reasons for the 2018 EM condition; (b) failing to conduct quarterly reviews of the 2018 and 2023 EM conditions; and (c) when she did conduct reviews, failing to address, or to give reasons for her answers to, the questions raised by paragraph 7(2) of Schedule 10. (4) Ground 4 is that the claimant’s subjection to an EM condition on 17 September 2018 and at any time thereafter was in breach of his rights under Article 8 ECHR. (At earlier stages, reliance had been placed on Articles 3 and 5, but these were no longer relied on.)

57. I will first consider these grounds in relation to the 2023 EM condition and then I will consider the 2018 EM condition.

58. A fifth ground, concerning the retention of trail data, appears, as the Secretary of State contended, to have been parasitic on the other grounds. In any event, it does not appear that any issue arises as to the retention of trail data since, as I have already noted, although it is the Secretary of State’s policy to retain trail data for 6 years, the Secretary of State will delete the trail data in any case where she accepts that an EM condition was imposed or maintained erroneously and I did not understand the Secretary of State to adopt a different position in this case to that adopted in ADL , which was that the Secretary of State accepted that, if I held that any of the EM conditions were unlawful for any period of time, the Secretary of State would delete the relevant trail data for that period. (6) The 2023 EM Condition

59. The 2023 EM condition was imposed by a judge of the First-tier Tribunal. In a claim against the Secretary of State, it would not normally be open to the claimant to challenge a decision taken by the First-tier Tribunal. However, I note that, in the present case: (1) The claim form identifies the date of the decision challenged as 10 February 2023, which is a reference to the imposition of the 2023 EM condition by the First-tier Tribunal. (2) “The Immigration and Asylum Chamber (IAC)” was named in the claim form as an interested party and the claim form was served on the First-tier Tribunal, although it was removed as an interested party by Lang J’s order of 12 March 2024. (3) It was not to be expected that the First-tier Tribunal, as a tribunal, would, if named as a defendant rather than an interested party, have defended the claim. Instead, it would have been left to the Secretary of State to defend the claim, as she has done. (4) The claimant was given permission to advance ground 1, which, as will be seen, necessarily involved a challenge to the jurisdiction of the First-tier Tribunal. (5) No point was taken in the amended detailed grounds of defence or at the hearing that the claimant could not challenge the imposition of the 2023 EM condition because it was imposed by the First-tier Tribunal rather than by the Secretary of State.

60. In those circumstances, I have considered ground 1 insofar as it is a challenge to the imposition of the 2023 EM condition.

61. I note also that, although this case has been heard and decided in 2025, I am only concerned with the claimant’s pleaded case in respect of which permission to amend was granted, which concerns the period down to 10 June 2024, the date of the further amended statement of facts and grounds. No permission was sought to amend the statement of facts and grounds to challenge any decisions made after 10 June 2024. However, this is unlikely to be a point of significance, since the claimant’s case is that the 2023 EM condition was unlawful from the outset and the parties did not contend that there had been any material change since 10 June 2024. (6)(a) The 2023 EM Condition: Ground 1

62. Ground 1 is set out in paragraphs 106 to 108 of the further amended statement of facts and grounds. I note that there is a conflict between paragraph 106, in which it is alleged that there was no prospect of the claimant’s removal to Turkey, and paragraph 108, in which it was alleged that deportation was highly unlikely. This was unsatisfactory. However, I consider that paragraph 106 sets out the essentials of the case which was advanced at the hearing, which was that: (1) There was no prospect of the claimant’s removal to Turkey. (The Secretary of State acknowledged in paragraph 31 of the amended detailed grounds of defence that this was at least one way in which the claimant’s case was put.) (2) Consequently, the claimant “could not be detained pending deportation under Paragraph 1 of Schedule 10…”: I take this to mean that the claimant was not “liable to detention” for the purposes of Schedule 10. (3) As a result, it was unlawful to impose the 2023 EM condition.

63. In effect, this was an invocation of what Lord Brown said in Khadir in relation to the meaning of the words “liable to detention”, which are the words used in sub-paragraphs 1(2) and (5) of Schedule 10, and particularly the following sentence from Lord Brown’s judgment: “So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile.”

64. The corollary of this, as was acknowledged in Kaitey , is that an individual is not liable to detention if there is no prospect of his removal.

65. Mr Singh submitted, in effect, that it was not open to the claimant to advance this case because it necessarily involves a challenge to the power to grant immigration bail, but the claim never included a challenge to the claimant’s bail, only to the lawfulness of the EM condition. In my judgment, however, although it would have been desirable, it was not necessary for the claimant to spell out this implication of his case: the elements of that case were sufficiently set out in paragraph 106, especially with its reference to paragraph 1 of Schedule 10.

66. At this stage, I note a potential argument which was not pleaded or addressed to me and on which, accordingly, I have not based my decision: (1) As I have said, bail was granted on 10 February 2023 by the First-tier Tribunal. (2) The First-tier Tribunal had power under sub-paragraph 1(3) of Schedule 10 to grant immigration bail to a person who was being detained. (3) The claimant was being detained on 10 February 2023, but it has since been acknowledged that his detention was unlawful. (4) If (as to which I make no decision) the reasoning in B (Algeria) applies to sub-paragraph 1(3), “detained” in that sub-paragraph means “lawfully detained” and it is arguable that the First-tier Tribunal did not have power to grant immigration bail to the claimant. (5) Although sub-paragraph 1(2) of Schedule 10 gives power to the Secretary of State to grant immigration bail to a person who is liable to detention, there is no equivalent sub-paragraph in the case of the First-tier Tribunal.

67. For the purposes of ground 1, it is sufficient to refer to Khadir and to sub-paragraphs 1(5)(a) and 1(8)(a) of Schedule 10. Sub-paragraph 1(5)(a) provides that a person who can no longer be detained (which is what the claimant was, since his detention was unlawful) may be granted and remain on immigration bail if he is liable to detention under, inter alia, paragraph 2(3) of Schedule 3. Sub-paragraph 1(8)(a) then provides that a grant of immigration bail ends when, in a case where sub-paragraph (5) applied to that person, that sub-paragraph no longer applies to that person. The net effect is that the claimant could not be granted or remain on bail if he was not liable to detention.

68. Mr Singh submitted that the claimant remained liable to detention for so long as the deportation order remained in force and that the appropriate course for the claimant to take was to challenge the continuation of the deportation order, rather than to bring this claim. I do not accept that submission. In accordance with the decision in Tan Te Lam , cited by Lord Bridge in Khadir , the fact, if it is a fact, that there was no prospect of deporting the claimant is a jurisdictional fact for determination by the court.

69. I turn to the question whether, as at 10 February 2023, there was some, albeit small, prospect, or no prospect, of the claimant being deported. The facts of this case are, as Miss Naik submitted, extreme: (1) The claimant was acknowledged to be stateless as long ago as 6 November 2017 and as recently as 9 February 2023. (2) In the proceedings before the Divisional Court in 2017, the only prospect of deporting the claimant relied on by the Secretary of State was under the EURA, but Turkey withdrew from the EURA in 2019. (3) The Secretary of State contended that there was a prospect, as at 10 February 2023, of deporting the claimant, but she did not even identify that alleged prospect, let alone provide evidence of it. In particular, the statement in paragraph 30 of the amended detailed grounds of defence that the Secretary of State “has not given up on the prospect” of deporting the claimant does nothing to establish that such a prospect exists. (4) Related to that, as I have already noted, the Secretary of State has not identified any steps which she has taken since 11 March 2020 to persuade the Turkish authorities to issue an ETD.

70. Given that state of the evidence, I can only conclude that, as at 10 February 2023, there was no prospect of deporting the claimant. It follows that ground 1 succeeds. The 2023 EM condition was unlawful from the outset. I invite the parties to consider the appropriate relief which should be granted in the light of that decision and, in the event of disagreement, I will hear further submissions in that respect. (6)(b) The 2023 EM Condition: Grounds 2 and 3

71. Given my decision on ground 1, it is not necessary for me to address grounds 2 and 3, but it may be helpful for to me to say something about them, in case I am found to be wrong in relation to ground 1.

72. Since they overlap, I will deal with grounds 2 and 3 together. There are four aspects to grounds 2 and 3 insofar as they concern the 2023 EM condition, namely that: (1) the Secretary of State did not conduct quarterly reviews in time; and (2) when she conducted those reviews: (a) the Secretary of State did not address the right questions, i.e. those identified in paragraph 7(2) of Schedule 10; (b) the Secretary of State did not give reasons for her answers to those questions; and (c) the Secretary of State did not consider factors which were identified as relevant in the Bail Guidance, i.e. “the overall time spent on EM”, “the time on the particular device type”, “the expected time until removal” and “any vulnerabilities”. (6)(b)(i) Late Reviews

73. It was not submitted in this case, as it was in ADL , that there was any good reason for the Secretary of State’s delay in conducting quarterly reviews.

74. It follows from my decision in ADL and the decision of the Upper Tribunal in Nelson that the 2023 EM condition was unlawful for each period after the quarterly review should have been conducted until that review was conducted. In the present case, that applies to the following periods: (1) from 14 to 19 May 2023 (i.e. from 3 months after the 2023 EM condition was imposed and the device fitted until the 2023 EM condition was first reviewed); (2) from 20 August to 8 September 2023 (i.e. from three months after the first review until the second review); and (3) from 6 to 13 March 2024 (i.e. from 3 months after the third review until the fourth review).

75. These are comparatively short periods, but they each fell outside the 3 month period provided for in the Bail Guidance. I said as follows in paragraph 44 of my judgment in ADL , by reference to the relevant passage in the Bail Guidance: “It was accepted on behalf of the Secretary of State that the statement in this passage that the use of EM must be reviewed “on a quarterly basis” meant that an EM condition imposed on an individual must be reviewed within three months of its imposition (which appears to have been understood as the date on which the EM condition was implemented by fitting the fitted device to the individual’s ankle) and, if it remained in force, within three months of any review.”

76. In the present case, the Secretary of State contended in the amended detailed grounds of defence that there had been no breach of the policy set out in the Bail Guidance because reviews were conducted on an approximately quarterly basis. However, Mr Singh confirmed that the Secretary of State did not intend to resile from what had been conceded in ADL . That is appropriate, since the policy is to conduct quarterly reviews, not “approximately” quarterly reviews.

77. I note, however, that a short delay in the conduct of a review of an EM condition may not result in any remedy being granted by the court, if the delayed review is conducted lawfully and upholds the EM condition. I referred in my judgment in ADL to the decision of the Supreme Court in R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717 (“ O ”), a case in which permission to apply for judicial review was refused because, while there had been a breach of public law rendering detention unlawful for a period of time, judicial review proceedings would only have resulted in an award of nominal damages.

78. On this basis, the Secretary of State submitted that I should refuse to grant relief pursuant to section 31 (2A) of the Senior Courts Act 1981 , which provides as follows: “The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

79. Even if I had not decided ground 1 in favour of the claimant, I would not have dealt with the issue of relief in this judgment, but would have left it to be considered once the parties had had the opportunity to consider this judgment as a whole. (6)(b)(ii) The Questions Asked on the Reviews

80. In my judgment in ADL , I decided that it was necessary for the Secretary of State, when deciding in a deportation case whether to impose an EM condition, to consider the questions raised in paragraph 2(5) of Schedule 10. That is why, after I found in paragraph 141 of that judgment that no consideration was given when the EM condition was imposed in PER’s case to the question whether imposing an EM condition would be impractical or contrary to PER’s Convention rights, I held in paragraphs 189(1) and 290(7) that this meant that the Secretary of State had acted unlawfully.

81. I see no reason for reaching a different conclusion in relation to reviews of EM conditions. The Secretary of State has a duty to conduct quarterly reviews of EM conditions and it surely goes without saying that those reviews have to be conducted in accordance with the applicable law, i.e. paragraph 7(2) of Schedule 10.

82. Against that background, it is perhaps unfortunate that the forms used for recording the outcome of reviews did not expressly set out the questions which are required to be addressed by paragraph 7(2) of Schedule 10. However, the wording of each of the reviews indicates that the officer did consider whether it remained proportionate to maintain the 2023 EM condition, which was in substance the issue to be addressed when considering whether it would be contrary to the claimant’s Convention rights for him to continue to be subject to the 2023 EM condition.

83. The records of the reviews were silent as to the question whether it was impractical for the claimant to continue to be subject to the EM condition, but, in the absence of any evidence that there was an issue in this respect, I do not consider that this was a question which required any detailed consideration.

84. Accordingly, I conclude that the Secretary of State asked the right questions when conducting the reviews. (6)(b)(iii) Absence of Reasons

85. I do not consider that the Secretary of State was under a duty to give reasons to the claimant for the decision which she took on a quarterly review of an EM condition. Her policy was to conduct a quarterly review. It was not her policy to notify the individual concerned of the outcome of the review or to give reasons to the individual for the outcome of the quarterly review. What I said in paragraph 155 of my judgment in ADL applies in this respect. (6)(b)(iv) The Matters Considered on the Reviews

86. I have already noted that the Bail Guidance identified the following as amongst the relevant factors to be considered when reviewing an EM condition: “• the overall time spent on EM • the time on the particular device type” “• the expected time until removal • any vulnerabilities”

87. The claimant contended that the Secretary of State did not consider these factors when reviewing the 2023 EM condition. In considering this contention, I have the records of the reviews, but I do not have the benefit of any evidence from the Secretary of State explaining or supplementing those records.

88. It is clear from the passages which I have cited from the records of the reviews that the Secretary of State considered the claimant’s vulnerabilities.

89. As for the overall time spent on EM and the time spent on the particular device type, I have quoted the statement in the records of each of the first, second and fourth reviews that “This decision also considers the period Mr Taskiran has already been monitored for …”. However, that statement has to be read in the context of the entry with states that the “Date monitoring started” was 13 February 2023. There is certainly no express reference in any of the records to the fact that the claimant had been monitored for over 4 years before that, from 17 September 2018 to 12 January 2023. Given the state of the evidence, I am unable to find that the Secretary of State took account, as she should have done, of that period of time when conducting the reviews.

90. As for “the expected time until removal”, I have already noted that the records of the reviews did not mention: (1) the real barrier to removal, which was the unwillingness of the Turkish authorities to facilitate removal by issuing an ETD; (2) the fact that no action had been taken to attempt to obtain an ETD since 2020 (or, if any such action had been taken, what it was); or (3) when or how it was anticipated that the claimant would be deported.

91. These are all factors which went to the expected time until removal and which indicated that that would be a long time, if not an indefinite time.

92. It is true that the records of the first and second reviews referred to what were said to be the barriers to removal. If the barriers to removal had been correctly identified, then it is likely that that would have been sufficient to show that the Secretary of State had considered the expected time until removal. However, the barriers to removal were incorrectly identified. The matters wrongly stated to be barriers to removal were such as to indicate a comparatively short time to removal.

93. In this respect, therefore, the Secretary of State not only failed to take account of relevant considerations, but she took account of irrelevant considerations. Mr Singh submitted that the errors in the records of the reviews were immaterial, but I cannot accept that. The expected time until removal was acknowledged to be a relevant factor. Moreover, Mr Singh himself accepted that removal would be very difficult, which suggests that, even if there were a prospect of deporting the claimant, the time to removal could be very long, a proposition which is supported by the history of this case, with the 2023 EM condition being imposed almost 5 years after the deportation order was made.

94. I do not propose to say anything about the consequences of these failures on the part of the Secretary of State, since I am dealing with grounds 2 and 3 on the hypothetical basis that I am wrong about ground 1 and I do not know in what respects it may be held that I am wrong about ground 1. Accordingly, I merely note that Mr Singh submitted that, if I found that any of the reviews were flawed, I should refuse to grant relief pursuant to section 31 (2A) of the Senior Courts Act 1981 . Again, I do not propose to deal with relief in this judgment. (6)(c) The 2023 EM Condition: Ground 4

95. As for ground 4, I have found that the EM condition was unlawful from the outset. It follows that it was not “in accordance with the law” for the purposes of Article 8 and that there was therefore a violation of the claimant’s Convention rights. (7) The 2018 EM Condition

96. I note that at certain points in the claimant’s skeleton argument it was suggested that the claimant was only seeking to challenge the 2018 EM condition in respect of the period from 2021. This may be a reference to the change on 7 February 2021 from an RF device to a fitted GPS device, although that is not made clear. However: (1) No basis was identified for contending that HHJ Auerbach had granted permission to apply for judicial review of the 2018 EM condition limited to the period from 2021. (2) Insofar as the claimant sought permission to amend the claim form and statement of facts and grounds, the proposed amendments, as set out in the further amended statement of facts and grounds, sought to challenge the 2018 EM condition from the outset. (7)(a) The 2018 EM Condition: Has Permission been Granted?

97. I do not consider that HHJ Auerbach granted permission to the claimant to challenge the imposition or maintenance of the 2018 EM condition. I reach this conclusion for a number of reasons: (1) HHJ Auerbach granted permission to the claimant to make the application for judicial review set out in the claim form. That was a challenge to the claimant’s detention between 12 January and 10 February 2023 and to his subjection thereafter to the 2023 EM condition. (2) The claim form stated that the claimant was challenging a decision dated 10 February 2023. That was the date of the imposition of the 2023 EM condition. (3) Neither the claim form nor the statement of facts and grounds contained a clear statement that the claimant was seeking to challenge either the imposition of the 2018 EM condition on 17 September 2018 or its maintenance thereafter until the claimant was detained on 12 January 2023. (4) The reference in the statement of facts and grounds to the fact that the claimant had been subject to an EM condition since 2018 was no more than a reference to the circumstances in which the 2023 EM condition was imposed, rather than an indication that the claimant wished to challenge the imposition or maintenance of the 2018 EM condition. (5) It is also significant in this context that the claim form and the statement of facts and grounds did not contain either an application for an extension of the time for applying for judicial review or an explanation of why the claimant contended that it was unnecessary to apply for such an extension. Had the claimant wished to challenge the imposition or maintenance of the 2018 EM condition, then he would have needed an extension of time. Even if the claimant’s subjection to the 2018 EM condition were to be seen as a continuing state of affairs for the purposes of CPR 54.5(1)(b), the claim form was issued more than 3 months after the 2018 EM condition came to an end, which was when the claimant was detained on 12 January 2023. I am not persuaded by the claimant’s argument that the 2023 EM condition is to be seen as a continuation of the 2018 EM condition or that the fact that the claimant’s detention between 12 January and 10 February 2023 was unlawful affected the limitation position. The fact that the claimant did not apply for an extension of time is an indication that he was not seeking to challenge a decision made more that 3 months before the issue of the claim form. At the very least, it was to be expected that, if he was seeking to make such a challenge, he would have included in the claim form or the statement of facts and grounds an explanation of why he contended that it was unnecessary to apply for such an extension.

98. The claimant submitted that the wording of the Secretary of State’s skeleton argument of 27 February 2024 indicates that the Secretary of State appreciated that the claimant was seeking to challenge the imposition and maintenance of the 2018 EM condition. I do not accept this. On the contrary, had the Secretary of State appreciated at any time that the claimant was seeking to make such a challenge, it was to be expected that the Secretary of State would have contended that the proposed challenge was out of time. In any event, by 27 February 2024 HHJ Auerbach had already dealt with the application for permission to apply for judicial review. A skeleton argument produced at that stage could not retrospectively change what HHJ Auerbach had decided. (7)(b) The 2018 EM Condition: Should Time be Extended?

99. The claimant’s application to renew the application for permission to amend the statement of facts and grounds was made late. Sheldon J’s order was made and served on 23 September 2024. Pursuant to CPR 23.8(3)(b), the application for renewal should have been made within 7 days of service of the order, i.e. by 30 September 2024, but the application for renewal was not made until 30 October 2024. However, no objection is taken to this delay, for which an explanation has been provided, namely that the claimant did not receive the Form 86B from the court until 28 October 2024. (7)(c) The 2018 EM Condition: Should Permission to Amend be Granted?

100. I do not consider that it is appropriate to grant permission to the claimant to amend his claim form and statement of facts and grounds to challenge decisions by the Secretary of State which pre-dated 10 February 2023. Although the court has a discretion under CPR 54.15 to allow the amendment, I agree with the reasons given by Sheldon J for refusing permission to amend.

101. This is not a matter of adding new grounds to an existing challenge, but of using amendment to introduce a challenge to decisions which are not currently subject to challenge. No good reason has been shown for departing from the general rule that judicial review challenges should be brought within 3 months of the decision to be challenged.

102. In this case, there have been two periods of delay: (1) As I have already noted, by the time the claim form was issued on 10 May 2023, more than 3 months had elapsed since the 2018 EM condition came to an end. (2) The amendment application was not made until 1 March 2024, which was over a year after the 2018 EM condition came to an end.

103. The claimant submitted that the delay was explained by the fact that the parties were waiting for my judgment in ADL , but that does not explain why the claimant did not articulate his challenge to the imposition and maintenance of the 2018 EM condition in the claim form or the statement of facts and grounds. The claim form was issued long before I heard ADL .

104. It was also submitted that the claimant was unrepresented throughout much of the period when the 2018 EM condition remained in force (i.e. from 13 October 2021 until 12 January 2023) and that he suffered from varying degrees of mental illness during the period when the 2018 EM condition remained in force. However, there was no evidence about this. Indeed, the submission that the claimant was unrepresented from 13 October 2021 carries with it the implication that he was represented for the first three years when the 2018 EM condition remained in force. In particular, there was no evidence about the circumstances in which the claimant came to be unrepresented or about the efforts (if any) which he made to seek representation. Nor was there any medical evidence to the effect that the claimant was unable to seek representation during this period.

105. In the light of my findings in relation to the 2023 EM condition, the challenge to the 2018 EM condition cannot be said to be without merit, but, against that consideration, there are positive reasons for not departing from the general rule in this case: (1) In the first place, the claimant was represented by solicitors when the 2018 EM condition was imposed and for three years thereafter. Moreover, his solicitors requested the removal of the 2018 EM condition in March and April 2019. (2) Secondly, the claimant gave active consideration to the question whether to challenge the 2018 EM condition and decided, on advice, not to do so. It is rarely appropriate to permit a claimant to bring an application out of time after the claimant has made a positive decision not to challenge the decision in question. (3) Thirdly, there have been material changes in both law and policy since the 2018 EM condition was imposed. In particular, as I have already mentioned: (a) The requirement in the Bail Guidance to conduct quarterly reviews of EM conditions was not introduced until 16 November 2020. (b) The provisions of Schedule 10 which impose a duty on the Secretary of State or the First-tier Tribunal to impose, or not to impose, and to remove, or not to remove, an EM condition did not come into effect until 31 August 2021. (8) Conclusion

106. For the reasons which I have given: (1) I find that the imposition of the 2023 EM condition was unlawful because the claimant was not, as at 10 February 2023, “liable to detention” for the purposes of paragraph 1 of Schedule 10, since there was then no prospect of his being deported to Turkey. (2) I find that the claimant does not have permission to challenge the imposition or maintenance of the 2018 EM condition. (3) I dismiss the application for permission to amend the claim form and statement of facts and grounds so as to challenge the imposition and maintenance of the 2018 EM condition.