The Supreme Court decided whether immigration bail can be granted to a person who can no longer lawfully be detained. B was facing deportation to Algeria, but the Special Immigration Appeals Commission found that there was no reasonable prospect of removing him and that the ordinary basis for detaining him had fallen away. The Court held that, under the Immigration Act 1971 as it then stood, bail depends on a continuing power of lawful detention and cannot be granted once that power has gone.
Why the power to detain had ended
The Home Secretary sought to deport B on national security grounds. He appealed to the Special Immigration Appeals Commission (SIAC). The government accepted that removal to Algeria would expose him to a real risk of prohibited treatment unless specific assurances could be obtained.
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B refused an order to disclose his identity. SIAC upheld the national security case but could not determine whether he could be returned safely while his identity remained unknown.
In 2014 SIAC found that there was no reasonable prospect of removal. Under the Hardial Singh principles, detention pending deportation is limited to that purpose, must last only a reasonable time, and requires the Secretary of State to act with reasonable diligence. If it becomes clear that deportation cannot be achieved within a reasonable period, continued detention is unlawful. The Secretary of State did not authorise further detention.
B said that, if he could not lawfully be detained, SIAC could no longer grant bail or maintain bail conditions. On 1 July 2014 SIAC rejected that argument. Irwin J dismissed his judicial review. The Court of Appeal allowed his appeal, holding that SIAC had no jurisdiction to impose bail conditions if detention would be unlawful. The Secretary of State appealed to the Supreme Court on that issue.
SIAC later allowed B’s deportation appeal. His bail fell away, but the Supreme Court heard the Secretary of State’s appeal on the meaning of the legislation in force at the material time.
Bail and lawful detention
It was common ground that detaining B after the February 2014 ruling would have exceeded the Hardial Singh limits. The Secretary of State argued that bail is a way of getting or keeping someone out of detention, whether or not that detention is lawful, and that bail conditions could continue to manage risk. B argued that bail is predicated on lawful detention, so the power to grant or maintain it ends when lawful detention ends.
Lord Lloyd-Jones, with whom Lady Hale, Lord Mance, Lord Hughes and Lord Hodge agreed, rejected a purposive reading that ignored lawfulness. Parliament is presumed not to interfere with liberty unless the statute makes that intention clear. Bail conditions can severely restrict liberty, and it was common ground that they may amount to a deprivation of liberty under article 5. The provisions had to be read strictly.
The bail powers in paragraphs 22 and 29 of Schedule 2 to the 1971 Act, as applied to SIAC, are available to a person who is “detained”. The Court held that this means lawfully authorised detention, not merely being held or a mixture of lawful and unlawful detention. A continuing power to detain is also necessary for the scheme to operate. The person must enter a recognizance to appear so that bail can be re-fixed, and re-detention for breach depends on a subsisting lawful power to detain. As Stellato and Konan show, neither the grant of bail nor breach of its conditions is itself authority to detain. Without that power, conditions and recognizances would be unenforceable.
A detention power may sometimes revive if circumstances change, but that did not cure the difficulty in the scheme. It was not suggested that any power had revived here. Once it ceases to be lawful to detain a person pending deportation, there is no longer a power to grant bail under paragraphs 22 or 29.
Why temporary admission did not help
The Secretary of State relied on Khadir, a case about temporary admission. Paragraph 21 applies to a person “liable to detention or detained”. A person may remain liable to detention, and eligible for temporary admission, even where actually detaining him would be unreasonable, provided removal is still intended and there is some prospect of it. Paragraphs 22 and 29 instead require a person who is “detained”. The Court treated that difference in wording as deliberate. Khadir concerns when a detention power may be exercised, not whether bail may be granted to someone who cannot lawfully be detained.
The practical objections
The Secretary of State said this reading would require tribunals or immigration officers to resolve difficult Hardial Singh issues merely to decide whether they had jurisdiction, and that police officers arresting for breach of bail would face the same problem. Lord Lloyd-Jones found little substance in those objections. An applicant is unlikely to deny jurisdiction to grant bail, and the Secretary of State is unlikely to assert that detention is unlawful. If the issue arises, it can be addressed on the application, with release on temporary admission or an urgent Administrative Court challenge if detention is maintained. In SIAC, judicial review can run alongside the proceedings, as it did here. A police arrest for breach depends on reasonable grounds concerning the breach, not on a fresh assessment of the detention limit.
The Court also saw no absurdity where detention is unlawful for another reason, such as reliance on an unpublished policy or a missed review. Once detention has been authorised on a lawful basis, bail can be granted. Any administrative inconvenience was a matter for Parliament.
The limits of the reasoning
Lord Dyson MR had also said that a power to grant bail presupposes a lawful power to detain which can be exercised. Lord Lloyd-Jones thought that sound, but preferred to rest this decision on Schedule 2. He noted that clear statutory words can produce a different result. Police bail may be one example. Section 61 of the Immigration Act 2016, which permits bail to continue where a person can no longer be detained but remains liable to detention, and which is to be treated as always having had effect, may be another. The Secretary of State did not rely on section 61. Article 5 was not decided because, in the Court’s view, it added nothing.
Verdict: The Court unanimously dismissed the Secretary of State’s appeal. Once lawful detention was no longer possible, the applicable provisions of the 1971 Act gave SIAC no power to grant B bail.
Source: B (Algeria) v Secretary of State for the Home Department [2018] UKSC 5
