The Supreme Court handed down judgment in the case of Secretary of State for the Home Department v AP [2010] UKSC 24 on the 16th June 2010. The case considered the relevance of different factors in determining whether a control order should be struck down as a deprivation of liberty violating Article 5 of the Human Rights Act 1998.

The appellant, an Ethiopian national who had been granted indefinite leave to remain, was detained under immigration powers from 2006 pursuant to a decision to exclude him from the UK. This exclusion decision was withdrawn following permission to make a control order. Initially based in London, the order was later modified, and the appellant made to move to a Midlands address 150 miles from London and his family.

The terms of the order were challenged by the appellant; allowing the appeal against modification, the High Court quashed the part of the order mandating residence in the Midlands. Following the High Court decision, the control order was then revoked by the respondent and deportation on national security grounds ordered. Despite the appeal being academic, the Court of Appeal heard the appeal and reversed the High Court decision. On grounds of general importance the appeal was brought before the Supreme Court.

Before the Supreme Court, three issues were considered. The first issue concerned whether proportionate Article 8 restrictions can be taken into account in determining whether Article 5 has been breached and whether it could be decisive factor. Secondly, whether person-specific factors can be taken into account and thirdly whether the Court of Appeal had been correct in interfering with the High Court decision on the grounds of inconsistency.

Finding that Article 8 could be a decisive factor in “tipping the balance” towards a determination of a deprivation of liberty under Article 5, the court held that it is in each case a question of fact and entirely a matter for the decision-maker.

Assessing whether person-specific factors can be taken into account, the court considered the argument of the respondent that individual factors be ignored. The reference to Secretary of State for the Home Department v JJ [2008] 1 AC 385 was dismissed on this point, the court finding that the House of Lords in that 2008 case had explicitly determined that the particular situation of the individual be considered.

In determining the third issue, the court outlined the two relevant paragraphs of the High Court judgment which were found to be inconsistent findings of fact in the Court of Appeal. Reversing the Court of Appeal decision on this point also, the court held that the second of the two paragraphs simply acted to encapsulate the earlier statement.

Allowing the appeal, the court restored the order of the High Court.