No power to grant immigration bail if no power to detain — Jake Richards

13 February 2018 by

supreme court

R (on the application of B) v Secretary of State for the Home Department [2018] UKSC 5

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 [2000] 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.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: