Kaitey (R on the application of) v Secretary of State for the Home Department

The power to grant immigration bail under Paragraph 1(2) of Schedule 10 to the Immigration Act 2016 depends on the existence of a legal power to detain. It does not depend on that power being capable of lawful exercise at the time. A person therefore remains liable to immigration bail where detention would contravene the temporal limits governing detention pending removal, provided that some prospect of removal remains.

The bail power remains subject to ordinary public law controls and fundamental rights. Conditions must pursue the statutory purpose, be rational and avoid unjustified interference with protected rights. The temporal limits developed for administrative detention do not apply by analogy to immigration bail.

The appellant was subject to a deportation order but had not been detained since 2011. Restrictions previously imposed under the Immigration Act 1971 became conditions of immigration bail under the transitional provisions associated with Schedule 10 to the Immigration Act 2016.

Elisabeth Laing J dismissed his judicial review claim, holding that immigration bail did not depend upon the lawful present exercise of the underlying detention power: [2020] EWHC 1861 (Admin); [2021] QB 285. The appeal asked principally whether Paragraph 1(2) authorised bail where detention would contravene the principles governing the permissible duration of immigration detention. Alternative grounds concerned the need for some prospect of removal and implied limits on the bail power.

1. Appeal dismissed. Paragraph 1(2) of Schedule 10 to the Immigration Act 2016 authorised the Secretary of State to grant immigration bail where a legal power of detention existed, even though that power could not then be exercised lawfully. The natural meaning of “liable to detention” distinguished the existence of a power from its lawful exercise. The House of Lords had drawn the same distinction in Khadir [2005] UKHL 39.

2. The statutory context, legislative history and transitional provisions confirmed that meaning. Paragraph 1(5) expressly contemplated bail continuing even where the person could no longer be detained. Parliament created “immigration bail” to replace bail, temporary admission, temporary release and restriction orders through a seamless transition. The legislation was intended to reverse the effect of the Court of Appeal’s decision in B (Algeria) [2015] EWCA Civ 445. The Supreme Court’s later decision concerned provisions requiring actual detention and did not govern the differently worded 2016 scheme.

3. The construction did not itself violate fundamental rights. Bail is a grant of liberty, although individual conditions may be sufficiently onerous to be unlawful. Such conditions remain subject to ordinary public law requirements, including statutory purpose and rationality, and to the Human Rights Act 1998. The temporal limitations developed for administrative detention under Hardial Singh were not implied into the bail power.

4. There must nevertheless remain some prospect of removal. If removal becomes wholly impossible, the underlying legal power to detain ceases and so does the power to grant bail. Permission to advance that fact-specific ground was refused because the material before the High Court disclosed no arguable error.

5. Paragraph 10 permitted short-term detention following arrest for suspected breach of bail conditions. A direction under Paragraph 10(12)(a) remained dependent on the lawful exercise of an underlying immigration detention power. Where that power could not lawfully be exercised, the person would have to be bailed again, potentially on more stringent conditions.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2021] EWCA Civ 1875. Permission to add the second ground and to adduce fresh evidence was refused.
• High Court, Administrative Court: Elisabeth Laing J dismissed the judicial review claim, holding that immigration bail could be imposed although the underlying detention power could not then lawfully be exercised: [2020] EWHC 1861 (Admin); [2021] QB 285. The judge granted permission to appeal because the statutory question was important and potentially affected many people.