B v The Secretary of State for the Home Department

The statutory scheme distinguishes a person who is liable to be detained from one who is detained. Temporary admission may remain available where removal has some prospect, even though detention would presently be unlawful. Bail under paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 presupposes lawful detention and cannot be used where detention is unlawful or unavailable. Statutory powers imposing severe restraints on liberty require strict construction. Strike-out for abuse of process at the end of a merits appeal is exceptional and requires a just and proportionate balance. The tribunal must address the litigant’s explanation for non-compliance and assess its genuineness and weight. Failure to do so is a material error requiring reconsideration.

B had appealed to the Special Immigration Appeals Commission against a notice of intention to deport him to Algeria. He refused to disclose his identity, despite orders requiring disclosure. SIAC later found that there was no reasonable prospect of removing him to Algeria and that he could no longer lawfully be detained. It nevertheless struck out his deportation appeal for abuse of process and rejected his argument that it no longer had jurisdiction to grant bail.

The Administrative Court dismissed B’s judicial review challenge to the bail decision. The Court of Appeal considered whether bail could be granted where detention was unlawful or unavailable, and whether the strike-out decision was proportionate without properly addressing B’s asserted fear of reprisals against his family.

1. Bail appeal allowed. The court accepted that, following SIAC’s decision that there was no reasonable prospect of removal, detention under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 could not lawfully continue. The statutory distinction between a person who is liable to detention and one who is detained was deliberate. Temporary admission under paragraph 21 of Schedule 2 could therefore remain available under the approach in R (Khadir) [2005] UKHL 39, [2006] 1 AC 207, but that reasoning did not govern bail under paragraphs 22 and 29.
2. Because bail conditions may severely restrict liberty, paragraphs 22 and 29 required restrictive construction. The word detained meant lawfully detained. Bail could not be granted where the person was unlawfully detained or could not lawfully be detained. This conclusion was reinforced by the relationship between bail and habeas corpus in Mitchell v Mitchinham (1823) 2 D & R and In Re Amand [1941] 2 KB 239, and by the strict approach to liberty-depriving provisions in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97.
3. Strike-out appeal allowed on the first ground only. The applicable test, derived from Summers v Fairclough Homes [2012] UKSC 26, [2012] 1 WLR 2004, required a just and proportionate balance between the seriousness of the abuse and the gravity of denying the appellant a merits determination. SIAC recognised the seriousness of B’s deliberate non-compliance and the public interest in protecting the integrity of its processes.
4. However, SIAC failed to decide whether B’s asserted fear of reprisals against his family was genuine and sufficiently compelling, or to assess the gravity of that risk. The omission was material because the Court of Appeal could not be certain that SIAC would have reached the same conclusion had it undertaken the required balancing exercise. The case was remitted to SIAC for further consideration. The remaining grounds, including reliance on article 47 of the EU Charter of Fundamental Rights, disclosed no real prospect of success; judicial review of the substantive article 3 issue remained available.

1. Court of Appeal (Civil Division) — allowed the bail appeal and allowed the strike-out appeal on the first ground only: [2015] EWCA Civ 445. The matter was remitted to SIAC.
2. Administrative Court — Irwin J dismissed B’s judicial review challenge to SIAC’s bail decision on 14 August 2014.
3. Special Immigration Appeals Commission — on 13 February 2014 SIAC held that there was no reasonable prospect of removal to Algeria and that detention was no longer lawful. On 1 July 2014 it struck out B’s deportation appeal and rejected the argument that it lacked jurisdiction to grant bail.