Kaitey v Secretary of State for the Home Department & Anor

Immigration bail under Schedule 10 to the Immigration Act 2016 is available to a person who is liable to detention, even where the underlying detention power cannot lawfully be exercised at that time. The phrase “liable to detention” carries the broad meaning given in Khadir v Secretary of State for the Home Department [2005] UKHL 39. Schedule 10 replaced temporary admission, temporary release and the former bail regime. Its language, reinforced by transitional provisions, clearly reversed the narrower approach in B (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 445. Bail conditions remain subject to public law control, and a detention direction following breach cannot itself make otherwise unlawful detention lawful.

The claimant had been released from immigration detention and remained subject to conditions for many years. He challenged the Secretary of State’s decision to impose immigration bail, arguing that Schedule 10 applied only where he was liable to lawful detention. Bail for Immigration Detainees intervened and supported that construction.

The issue was whether “liable to detention” in Schedule 10 had the broad meaning established in Khadir or the narrower meaning applied to the former bail provisions in B (Algeria), and whether the statutory scheme was subject to implied Hardial Singh-type limits.

1. Claim dismissed. The application for judicial review was dismissed. Timing issues were not determined because they were unnecessary and disproportionate to address.
2. The phrase “liable to detention” in Schedule 10 has the meaning given by the House of Lords in Khadir: a person may be liable to detention even though the power to detain cannot lawfully be exercised on the particular facts.
3. Schedule 10 distinguishes between a person who is being detained, a person who is liable to detention, and a person who can no longer be detained. Paragraph 1(5) is wide enough to include both continued detention that is impracticable and continued detention that would be unlawful.
4. The language and legislative history of section 61 of the Immigration Act 2016 show that Parliament intended to reverse the Court of Appeal’s decision in B (Algeria) and to make immigration bail available where the background detention power could not lawfully be exercised. Immigration bail is not ordinary bail; it occupies the territory formerly covered by temporary admission, temporary release and bail.
5. Paragraph 10(12) does not make detention lawful. On a breach of bail, the relevant authority must consider whether detention would be lawful. A direction to detain is challengeable if its effect would be unlawful detention.
6. No additional Hardial Singh-type limitation was required. The claim based on article 5 of the Convention raised no discrete issue on the facts, because the conditions were not said to amount to a deprivation of liberty.
7. It was unnecessary to decide whether the Secretary of State would have been required to grant leave if immigration bail had been unavailable. George v Secretary of State for the Home Department did not establish that proposition.