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

The principal issue was whether the Secretary of State may grant "immigration bail" under paragraph 1(2) of Schedule 10 to the Immigration Act 2016 where the person cannot lawfully be detained. The Court held that the phrase "liable to detention" denotes the existence in principle of a statutory power to detain, not that the power must be at that moment lawfully exercisable; consequently paragraph 1(2) and related provisions permit the grant and continuation of immigration bail even where detention would be unlawful. The court relied on the House of Lords decision in Khadir and the statutory history (including section 61 and the transitional provisions in Schedule 10), and rejected submissions that Hardial Singh limits or Article 5 ECHR considerations required a different construction. The court also refused permission to advance a factual challenge (that there was no "some prospect" of removal) as being out of scope and without real prospect of success.

Background and factual context:

• The appellant entered the UK clandestinely in 2006, exhausted his appeals and was subject to a deportation order; he was in custody in 2009 but released on bail in January 2011 and subsequently subject to reporting, residence and employment restrictions (initially as a restriction order under paragraph 2(5) of Schedule 3 to the Immigration Act 1971 and later treated as "immigration bail" by transitional provisions when Schedule 10 of the Immigration Act 2016 came into force in January 2018).
• The appellant sought judicial review challenging the lawfulness of the imposition of immigration bail on him where he could not lawfully be detained. The High Court (Elisabeth Laing J) dismissed the claim and granted permission to appeal to the Court of Appeal on the basis of an important point of statutory interpretation.

Nature of the claim and issues:

• (i) The claim sought declarations and relief that the Secretary of State lacked power under Sch.10 para.1(2) to place a person on immigration bail where detention would be unlawful (invoking principles from Hardial Singh and Article 5 ECHR);
• (ii) The Court framed the issues as whether "liable to detention" requires there to be a power lawfully to detain, whether there must be "some prospect" of removal for the detention power to exist, whether Hardial Singh temporal limits should be imported into the bail power, and whether the absence of a lawful bail power would oblige the grant of leave to remain.

Court's reasoning and disposition:

• The Court construed the statutory language purposively and reviewed the legislative history. It held that "liable to detention" naturally means that a legal power to detain exists in principle and did not import a requirement that detention must be lawfully exercisable at the time bail is granted.
• The Court relied on Khadir (House of Lords) to support the distinction between existence of a detention power and the lawfulness of its exercise. The statutory history (including section 61 of the 2016 Act, Schedule 10 and the transitional regulations) indicated a Parliamentary intention to encompass persons previously on temporary admission or restriction orders within the new concept of "immigration bail." Section 67 of the Nationality, Immigration and Asylum Act 2002 was also relevant to construction.
• The Court held that the Hardial Singh principles are important limits on administrative detention but operate in the context of detention itself; they do not automatically prevent the grant of immigration bail to a person who cannot lawfully be detained. The court accepted that the usual public law constraints (Padfield/Wednesbury, proportionality where engaged, and HRA compatibility) constrain the exercise of the bail power and that unduly onerous conditions may be challengeable on the facts, but that did not require reading down Sch.10.
• The Article 5 arguments did not compel a different construction; domestic remedies (including HRA and habeas corpus) remain available where a particular bail regime or conditions amount to unlawful deprivation of liberty.
• The Court declined to permit an additional factual ground (that there was no prospect of removal) because it was out of scope of the permission and had no real prospect of success on the material before the High Court.

Conclusion: the appeal was dismissed; the statutory construction permitted immigration bail to be granted or to continue even where detention cannot lawfully be exercised, subject to ordinary public law and human rights constraints on the exercise of that power.

Appeal dismissed. The Court held that paragraph 1(2) of Schedule 10 to the Immigration Act 2016 permits the Secretary of State to grant and maintain "immigration bail" to a person who is "liable to detention" even where detention would at that time be unlawful; "liable to detention" means that a statutory power to detain exists in principle, not that detention must be lawfully exercisable at the time. The Hardial Singh limits apply to administrative detention itself but do not of necessity restrict the statutory bail power; ordinary public law and Human Rights Act constraints remain available to challenge particular bail conditions. A factual ground asserting no prospect of removal was refused permission as out of scope and without real prospect of success.

Appeal from the High Court (Administrative Court, Elisabeth Laing J) [2020] EWHC 1861 (Admin); [2021] QB 285. Permission to appeal to the Court of Appeal was granted by the High Court; Bail for Immigration Detainees intervened with permission in the Court of Appeal.