R (Sezek) v Secretary of State for the Home Department

The Court of Appeal has original jurisdiction, ancillary to a pending civil appeal in judicial review proceedings, to order the temporary release of a person detained under immigration powers. The jurisdiction derives from the High Court’s power to make such an order and section 15(3) of the Supreme Court Act 1981.

The court must give great weight to the Secretary of State’s decision to detain and the reasons supporting it, while taking full account of the applicable detention policy. Sureties are relevant but are not conclusive, particularly where their practical recoverability is uncertain.

Article 5(1)(f) of the European Convention on Human Rights does not require proof that detention is the only available means of preventing absconding. Nor may Schedule 3 to the Immigration Act 1971 be strained to create a statutory bail power which Parliament did not confer.

The applicant, a Turkish national subject to a deportation order, was detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. Ouseley J dismissed his application for judicial review of the Secretary of State’s refusal to revoke the deportation order. The Court of Appeal subsequently granted limited permission to appeal.

After an adjudicator, who lacked jurisdiction in paragraph 2(3) cases, refused bail, Buxton LJ refused an application on paper. The applicant renewed his application before a full court. His substantive appeal was listed for 3 July 2001.

The principal questions were whether the Court of Appeal had jurisdiction to grant bail pending the appeal, whether that jurisdiction was original or supervisory, and whether release was justified in light of the risk of absconding.

1. The renewed application was dismissed. Peter Gibson LJ, giving the judgment of the court, held that the Court of Appeal could order temporary release. The High Court has power in judicial review proceedings to make an ancillary order temporarily releasing an applicant from detention. On an appeal in those proceedings, section 15(3) of the Supreme Court Act 1981 gives the Court of Appeal the authority and jurisdiction of the High Court.

2. The Court of Appeal exercises an original jurisdiction when considering such release. It does not judicially review the Secretary of State’s detention decision. The description in Vilvarajah of the jurisdiction as being “in the nature of a judicial review” reflected the weight properly afforded to the Secretary of State’s decision rather than defining the jurisdiction as supervisory.

3. The Secretary of State is designated by the Immigration Act 1971 to decide whether a person subject to a deportation order should be detained and has relevant institutional experience. The court should therefore give great weight to the detention decision and the reasons for opposing release. It should also take full account of the policy that temporary release should be granted where possible and detention authorised only where no alternative exists. The principal policy considerations were compliance with restrictions and removal arrangements, and the prospect of removal within a reasonable time.

4. Article 5(1)(f) of the European Convention on Human Rights expressly permits lawful detention of a person against whom action is being taken with a view to deportation. It does not make detention incompatible with the Convention merely because other means of preventing absconding may exist. Schedule 3 could not be distorted to extend the release power in paragraph 2(1A), which concerns appeals from criminal courts recommending deportation, to administrative detention under paragraph 2(3). Such detention remained open to challenge by habeas corpus or judicial review.

5. The proposed family and community sureties, stable address, employment offer and good conduct in prison carried weight. They were not conclusive, particularly because recovery of the proposed amounts was uncertain. The seriousness of the applicant’s drug offence, his previous conduct, the risk that criminal contacts could help him evade the authorities, the proximity of the appeal and the Secretary of State’s assessment of a real risk of absconding outweighed the considerations favouring release. The application was dismissed with costs.

• Court of Appeal: By [2001] EWCA Civ 795, the full court dismissed the renewed application for bail pending the applicant’s substantive appeal. Buxton LJ had previously refused the application on paper. The Court of Appeal had granted permission for the substantive appeal, limited to one point.
• High Court, Administrative Court: Ouseley J dismissed the application for judicial review of the Secretary of State’s refusal to revoke the deportation order and refused permission to appeal.
• Immigration adjudicator: The adjudicator refused bail, although the adjudicator had no jurisdiction to grant bail to a person detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971.