B v Secretary of State for the Home Department

Immigration bail under paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 requires a subsisting lawful power to detain. The statutory word “detained” means lawfully detained. Bail therefore cannot be granted or maintained once detention is unlawful under the Hardial Singh principles and no lawful power of detention has revived.

This construction reflects the principle of legality. Bail conditions may severely restrict liberty and can amount to a deprivation of liberty. Clear statutory language is therefore required before Parliament will be taken to have authorised such restrictions. Bail grants liberty to someone otherwise liable to lawful detention; neither the grant nor its breach supplies an independent authority to detain.

B was subject to deportation proceedings on national security grounds and to immigration bail conditions imposed by the Special Immigration Appeals Commission (“SIAC”). SIAC subsequently found that there was no reasonable prospect of removing him to Algeria. His continued detention would consequently have been unlawful under the Hardial Singh principles, although SIAC held that it retained jurisdiction to impose bail conditions.

Irwin J dismissed B’s claim for judicial review. The Court of Appeal allowed his appeal in [2015] EWCA Civ 445, holding that SIAC had no jurisdiction to impose immigration bail conditions where detention would be unlawful. The Secretary of State appealed.

Although B’s substantive deportation appeal was later allowed and his bail fell away, the Supreme Court determined whether the Immigration Act 1971 conferred power to grant immigration bail to a person who could no longer lawfully be detained.

1. The Secretary of State’s appeal was dismissed unanimously. Lord Lloyd-Jones gave the judgment, with which Lady Hale, Lord Mance, Lord Hughes and Lord Hodge agreed. Paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 did not authorise immigration bail where the person was unlawfully detained or, while at liberty, could not lawfully be detained.

2. The principle of legality required the provisions to be construed strictly and restrictively. Parliament is presumed not to interfere with liberty without clear words. That presumption applied although bail effects release, because bail conditions can severely curtail liberty and may constitute a deprivation of liberty under article 5(1)(f) of the Convention.

3. Being “detained” was a condition precedent to bail under paragraphs 22 and 29. In context, it meant detention under lawful authority. The statutory language did not extend to purported or unlawful detention. The corresponding power conferred on SIAC by section 3 of the Special Immigration Appeals Commission Act 1997 was likewise founded on detention.

4. A continuing lawful power of detention was also necessary to make the bail scheme effective. Bail could be re-fixed and, upon breach, the person might be returned to custody. The legal authority for that custody had to arise independently of the grant or breach of bail. Bail itself was a grant of liberty and supplied no authority to detain.

5. R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39 did not assist the Secretary of State. It concerned temporary admission under paragraph 21, which expressly applies to a person “liable to detention or detained”. That language materially differed from paragraphs 22 and 29, which apply to a person “detained”. The distinction between the existence and exercise of a detention power could not be transferred to the differently worded bail provisions.

6. The suggested administrative impracticability did not justify another construction. A bail decision-maker could address a jurisdictional issue concerning lawful detention. The arrest power in paragraph 24(1)(a), unlike the power to order re-detention under paragraph 24(3), did not itself depend on a continuing exercisable immigration detention power.

7. The general proposition that bail presupposes an exercisable lawful power to detain was not necessarily universal. Parliament could displace it by sufficiently clear statutory language. The decision rested on the construction of Schedule 2 as it applied before section 61 of the Immigration Act 2016.

8. SIAC had found that there was no reasonable prospect of B’s removal, and no subsequent revival of a lawful detention power was alleged. SIAC therefore had no power to grant him bail under paragraph 22. The article 5 arguments added nothing to the resolution of the appeal.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was dismissed unanimously. The court affirmed that SIAC lacked power to grant immigration bail after the lawful power to detain had ceased: [2018] UKSC 5.

2. Court of Appeal: B’s appeals were allowed. The court held that SIAC could not impose bail conditions if his detention would be unlawful, set aside the strike-out of his substantive appeal and remitted that matter to SIAC: [2015] EWCA Civ 445; [2016] QB 789.

3. High Court: Irwin J granted permission to seek judicial review of SIAC’s bail decision, dismissed the judicial review claim and granted permission to appeal.

4. Special Immigration Appeals Commission: On 1 July 2014 SIAC held that it retained jurisdiction to impose bail conditions despite its earlier finding that B could no longer lawfully be detained. It also struck out his substantive appeal. Following remittal, SIAC refused to strike out that appeal and ultimately allowed it after the Secretary of State ceased to oppose it.