The Secretary of State for the Home Department v Lucas, R (On the Application Of)

Standard-form immigration bail granted by the First-tier Tribunal, where no appeal is pending, ends when the person surrenders to an immigration officer at the specified time and place. Any continuing conditions are conditions of immigration-officer bail. A formal written re-grant is helpful but unnecessary.

Detention under the Immigration Act 1971 may be used for the administrative machinery of removal, including obtaining emergency travel documentation. The Hardial Singh principles require a genuine intention to deport, detention for no longer than a reasonable period, release when removal within that period is no longer reasonably achievable, and reasonable diligence. Actual removal need not be imminent.

These conjoined appeals concerned the re-detention of two Nigerian nationals, Mr Lucas and Mr Aboro. Each was subject to a deportation order and had previously been granted bail by the First-tier Tribunal. Each was later arrested and detained so that Nigerian officials could conduct an interview to establish nationality and facilitate emergency travel documentation.

In Mr Lucas’s case, Collins J held that the First-tier Tribunal bail remained in force and that his detention was unlawful, although only nominal damages were awarded: [2016] EWHC 1960 (Admin). Mr Aboro challenged a High Court refusal of permission to proceed with his judicial review. The central issues were whether the tribunal bail continued after surrender to an immigration officer and whether detention for documentation interviews complied with the statutory scheme and the Hardial Singh principles.

Disposition. The Court of Appeal unanimously allowed the Secretary of State’s appeal, dismissed Mr Lucas’s cross-appeal, and dismissed Mr Aboro’s substantive appeal on the narrow ground for which permission was granted. Permission to amend Mr Aboro’s grounds was refused.

1. Effect of surrender to bail. Under the Immigration Act 1971, the standard First-tier Tribunal bail condition requiring appearance before an immigration officer is a condition for surrender to bail. On surrender, the tribunal bail ends. Any further bail is immigration-officer bail, and the officer may continue appropriate secondary conditions. A formal written record of the new grant is not a prerequisite. The Court followed R (AR (Pakistan)) [2016] EWCA Civ 807.
2. Failure to surrender and arrest. If the person fails to surrender, the bail does not simply continue. The person becomes liable to detention under the underlying power and may be arrested under paragraph 17 of Schedule 2. Paragraph 24 concerns arrest for an actual or threatened breach of bail while bail remains current.
3. Hardial Singh. The detention power may lawfully be used for administrative steps in the removal machinery, including re-documentation. The four principles were satisfied in both cases. Each appellant was intended to be deported; detention was considered necessary to secure attendance at the Nigerian interview; there remained a real prospect of removal within a reasonable period; and the Secretary of State acted with reasonable diligence. Removal did not need to be imminent. Later delay caused by further representations did not retrospectively invalidate the earlier detention.
4. Aboro and the operational instructions. Mr Aboro’s immigration-officer bail could be brought to an end following a change of circumstances. In any event, he could have been required to attend an immigration officer at short notice and then re-detained. The disclosed operational instructions showed that existing detention was a criterion for participation in the interview scheme, not a blanket policy requiring all potential participants to be detained.
5. Permission procedure. Under the Civil Procedure Rules 1998, grounds refused on paper were final. The permission application had been adjourned for an oral hearing on one ground only, so the other grounds could not be renewed.

• Court of Appeal (Civil Division) allowed the Secretary of State’s appeal, dismissed Lucas’s cross-appeal, granted permission to appeal to Aboro on one ground but dismissed that appeal, and refused permission to amend the grounds.
• High Court, Administrative Court Collins J held in Lucas’s case that the detention was unlawful and awarded nominal damages: [2016] EWHC 1960 (Admin). Jay J refused permission in Aboro’s judicial review claim and declared it totally without merit.