No power to grant immigration bail if no power to detain — Jake Richards
13 February 2018
On 8th February 2018, the Supreme Court held that the power to grant bail and impose bail conditions in respect of a person pending deportation ceases to be lawful if there is no legal basis for detaining that person. The power to impose bail conditions is inextricably linked to the power of detention. Once the Home Secretary ceases to have the power to detain a person under immigration law, she can’t then impose conditions on that person’s freedom through bail conditions.
The Respondent (“B”) arrived illegally in the U.K. in the early 1990s. In 2002, he was arrested in connection with alleged terrorist-related activity and detained under anti-terrorism powers. It was claimed that B, although suffering from significant mental health difficulties, had played a leading role in facilitating communications for Algerian terrorists as well as being responsible for the procurement of false documentation and technology equipment. From then until 2014, B remained either in prison or on conditional bail (including special bail conditions to allow his admission to a psychiatric hospital). In 2005, the Home Secretary notified B that they were seeking a deportation order against him on national security grounds.
The Government has never disputed that, if deported, B would be at real risk of treatment incompatible with Article 3 ECHR and that only with specific assurances from the Algerian government could he be lawfully and safely removed to Algeria. In February 2014, the Special Immigration Appeals Commission (SIAC) found there was no reasonable prospect of removing B from the UK and that, as a result, the legal basis for his detention under immigration legislation had fallen away. However, SIAC provided for bail conditions to be maintained, if they were reviewed. Accordingly, B’s bail conditions were relaxed but maintained.
B appealed the decision to impose bail conditions, but the decision of the SIAC was upheld in the High Court. However, the Court of Appeal allowed B’s appeal.
It should be noted that in December 2016, the SIAC allowed B’s substantive deportation appeal and, as a result, the issue of B’s bail fell away, but the Supreme Court granted permission to the Government’s application to appeal the decision in the Court of Appeal on the legality of imposing bail conditions where there is no power to detain in cases such as B’s.
The Supreme Court unanimously dismissed the Government’s appeal. Lord Lloyd-Jones gave the lead judgment with which the other Justices agreed.
Critical to the judgment was an analysis of the so-called Hardial Singh principles, concerning the Government’s detention powers in immigration cases, under the Immigration Act 1971. These are:
- The Government, if detaining an individual under the Immigration Act, must intend to deport the person and can only use the detention power for that purpose.
- The deportee may only be detained for a reasonable period.
- If it becomes apparent that they will not be able to effect deportation within a reasonable period, then the Government should not seek to exercise the power of detention.
- The Government should act with reasonable diligence and expedition to effect removal.
At the heart of this case was a dispute as to the correct approach in principle to apply when the Hardial Singh limit on actual detention is reached. The Government argued that the Supreme Court should adopt a purposive approach in interpreting the legislation, attempting to interpret the law with a focus on Parliament’s intention when passing the relevant legislation. In this case, the bail power should be available regardless of whether the individual is lawfully detained. In the immigration system, it was argued, there can be dangerous criminals and those who pose a threat to national security and bail should be available in such cases. Bail, in such circumstances, helps to protect the public from such risks if detention is no longer appropriate under the Hardial Singh principles.
Therefore, the Home Secretary argued that when interpreting the term “detention”, the court should be flexible. Bail and temporary admission, or temporary release, are “ameliorating possibilities” in the immigration system and represent alternatives to detention. It is sensible that they are available in a situation where actual detention can no longer continue.
The Supreme Court dismissed these submissions. Whilst accepting the practical difficulties, the Court said there was
no basis for adopting the purposive approach for which the Secretary of State contends, resting as it does on a disregard of the issue of the lawfulness of any continuing detention. It is a fundamental principle of the common law that in enacting legislation Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear.
Fundamentally, the Supreme Court was wary of allowing any curtailing of a person’s liberty on the basis of innovative interpretations of the law. Here, the court quotes Lord Hoffman in R v Secretary of State for the Home Department, Ex P. Simms  2 AC 115, 131D-G:
Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
Therefore, the court interpreted the statutory provisions strictly and restrictively. “Detained” means “lawful detention”, and once there was no power to lawfully detain the individual, there could be no power to impose bail conditions.
Further, it was argued, on behalf of B, that a situation whereby there was a power to impose bail conditions – but not to detain – an individual would lead to administrative chaos. What would the Home Secretary do if there was a breach of bail? There would be no power to breach an individual’s liberty by bringing that person into detention.
Therefore, the Supreme Court concluded that in the absence of a power of lawful detention, there was no power to grant bail under the Immigration Act 1971.
The effect of the judgment, whilst only affecting a small number of those in the immigration system, may be of some political significance. There will be others in B’s situation – where detention is no longer a viable but the Home Secretary has substantive allegations that suggest the individual is a threat to national security. In such circumstances, bail conditions serve as a useful tool. This judgment may spark renewed interest in Parliament for further measures to monitor those who cannot be detained but remain of concern to the Home Secretary.
Jake Richards is a barrister at 9 Gough Square. He tweets @JakeBenRichards.