BB, R (on the application of) v Special Immigration Appeals Commission & Anor

Immigration bail conditions must be assessed in the claimant’s concrete situation. A 16-hour curfew, together with additional restrictions, does not necessarily amount to deprivation of liberty. The question is whether the restrictions, considered as a whole, deprive rather than merely restrict physical liberty.

Immigration bail proceedings are ancillary or interim proceedings in the deportation process. Although they may affect common law and Convention rights, they do not determine civil rights for the purposes of Article 6(1) where the underlying issue is entry, stay or deportation. The close and inseparable link between bail, detention and contemplated deportation is decisive.

The claimant, an Algerian national subject to a national-security deportation decision, had been released on bail by the Special Immigration Appeals Commission subject to extensive conditions, including electronic monitoring, residence requirements, a 16-hour curfew, a geographical boundary and restrictions on visitors and electronic devices.

He challenged SIAC’s conclusions that the conditions did not deprive him of liberty under Article 5(4) of the Convention and that the bail proceedings did not determine civil rights for Article 6(1) purposes. The court considered whether the conditions amounted to deprivation of liberty and whether immigration bail proceedings were sufficiently separate from deportation proceedings to engage Article 6(1).

1. Article 5(4). Permission was refused on the challenge to SIAC’s finding that the bail conditions did not deprive the claimant of liberty. The assessment required consideration of the concrete situation, including the type, duration, effects and implementation of the restrictions. The claimant had family life at home, could leave between 10.00 and 18.00, and had access within the bail boundary to ordinary facilities and social life.

2. The 16-hour curfew did not itself amount to deprivation of liberty. The other conditions, although burdensome, were not unusually destructive of the life the claimant might otherwise have been living. SIAC’s evaluative conclusion was not perverse. Judicial review could succeed only if that conclusion was irrational or perverse, and the court was clear that it was not.

3. Article 6(1). Permission was granted on the challenge to SIAC’s conclusion, but the claim was dismissed. Under Maaouia v France (2001) 33 EHRR 42, decisions concerning the entry, stay and deportation of aliens do not determine civil rights or obligations within Article 6(1).

4. SIAC bail proceedings are an alternative to, or relaxation of, immigration detention. They are conditioned on future attendance before an immigration officer and directly serve contemplated deportation. They are therefore properly characterised as interim or ancillary proceedings within the deportation process. They may affect civil and human rights, but they do not determine the civil right at stake.

5. The exception for interim measures in Micallef v Malta (2010) 50 EHRR 37 did not apply. The bail proceedings did not effectively determine a civil right or obligation, and were not dispositive of the deportation proceedings. The parallel with control orders was immaterial because deportation was not the issue in those proceedings.

6. The court accordingly refused permission on the Article 5(4) ground, granted permission but dismissed the Article 6(1) ground, and upheld SIAC’s conclusions.

The judgment records that the claimant’s national-security deportation appeal had proceeded through SIAC, the Court of Appeal and the House of Lords, while a further appeal concerning closed grounds was pending before the Supreme Court. The present proceedings challenged later SIAC bail decisions.