Lawful detention is a precondition for granting bailasad-khan

The case of “B” enabled the Supreme Court to put to rest the theory that continuous lawful detention is not a condition precedent for exercising the power to grant bail and impose bail conditions under the Immigration Act 1971. The Court of Appeal judged that SIAC had no power to impose bail conditions on B because his detention was unlawful. On the Government’s appeal, the issue in the Supreme Court was whether once there is no longer a lawful basis for the detention of an individual pending deportation, there is still a power to grant bail and impose bail conditions in respect of that individual under the 1971 Act. Dismissing the appeal, Lord Lloyd Jones held that where it ceases to be lawful to detain a person pending deportation there is no longer a power of detention and there is resultantly no power to grant bail. A continuing power to detain is a precondition to the grant of bail. Notably, B’s case has a long and complicated history because of his clear links to terrorism, his use of a false identity and his failure to cooperate with the authorities. He entered the UK illegally in 1993. Between 2002 and 2005 he was detained under the Anti-Terrorism, Crime and Security Act 2001. In August 2005, he was notified of the intention to deport him. Pending deportation he was detained pursuant to Sch 3 of the 1971 Act.

The UK sought assurances from Algeria that B would not be treated in breach of ECHR, art 3 upon return. Algeria’s authorities confirmed in July 2006 that the identity details provided by B were those of someone present in that country. In July 2007, SIAC ordered B to reveal his true identity. In July 2008, SIAC held that B posed a risk to national security. SIAC subsequently held in November 2010 that B had disobeyed its earlier order of July 2007 and imposed a prison sentence of four months on him. Bail conditions accompanied his release from imprisonment and in February 2014, SIAC held that no reasonable prospect existed of removing B to Algeria and the ordinary legal basis for justified detention under statute therefore ceased to have effect. His bail conditions were relaxed and detention was not pursued. His deportation appeal was struck out because of contempt of court and SIAC rejected the argument that after its earlier decision its jurisdiction fell away to grant bail to B or to impose bail conditions. The High Court upheld this finding but Lord Dyson reversed the decision.

The Court of Appeal

Lord Dyson MR, Richards and Black LJJ allowed his appeal by holding that SIAC had no jurisdiction to impose bail conditions on B if his detention would be unlawful. They held that bail may not be granted under paras 22 and 29 of Sch 2 of the 1971 Act where someone is unlawfully detained purportedly under para 2(2) of Sch 3 or where someone not currently in detention could not lawfully be detained under that provision. Considering Tan Te Lam [1996] UKPC 5, Dyson MR construed para 22 and 29 restrictively and held that:

  1. The court should construe strictly any statutory provision which purports to allow the deprivation of individual liberty by administrative detention.

Applying Hardial Singh [1984] 1 WLR 704 and Lumba [2011] UKSC 12, detaining B would exceed the implied limits on the exercise of administrative power to detain for immigration purposes. Statute clearly and deliberately distinguished someone detained under para 2 of Sch 3 (who could be released on bail) from someone liable to detention under para 21 of Sch 2 (who could be temporarily admitted).

The Supreme Court

Lady Hale and Lords Mance, Hughes, Hodge, Lloyd-Jones unanimously dismissed the Government’s appeal. Giving the leading judgment, Lord Lloyd-Jones observed the centrality of Hardial Singh principles which stipulate that (i) the authorities must intend to deport the person and can only use the detention power for that purpose, (ii) the deportee may only be detained for a reasonable period, (iii) if it becomes apparent that the authorities will not be able to effect deportation within a reasonable period then it should not seek to exercise the power of detention, and (iv) the authorities should act with reasonable diligence and expedition to effect removal.

After SIAC’s ruling of February 2014, it was uncontroversial and undisputed that that B could not lawfully be detained because maintaining detention would exceed the implied limits on the exercise of administrative power to detain in immigration cases as decided in Hardial Singh. Lord Lloyd-Jones rejected the Government’s stance that the legislation in question needed to be interpreted purposively so that bail is available irrespective of whether the individual is lawfully detained or would hypothetically be lawfully detained.

Tan Te Lam and Khawaja [1983] UKHL 8 held that it is a fundamental principle of the common law that while legislating Parliament is presumed not to intend to interfere with the subject’s liberty without making such an intention clear. In Wasfi Suleman Mahmod [1995] Imm AR 311, acknowledging Parliament’s entitlement to confer powers of administrative detention without trial, Laws J stressed the need for the courts (i) to construe the conferring statute strictly and narrowly, and (ii) to supervise its operation and effect to high standards. B’s case turned on the power to grant bail. The power of executive detention was not its focus. Lord Lloyd-Jones opined that the principle of legality was in play. Applying Simms [1999] UKHL 33, he found that general or ambiguous statutory words are incapable of overriding fundamental rights.

Dyson MR had described the power to grant bail, conferred by paras 22 and 29 of Sch 2 to the 1971 Act, to be “predicated on the individual being detained” and the parties agreed that being “detained” is a condition precedent its exercise. Likewise, SIAC’s power to grant bail under the SIAC Act 1997, s 3 is founded on detention. Lord Lloyd-Jones concurred with Dyson MR’s conclusion that it would be extraordinary for Parliament to have intended to confer the power to grant bail where a person had been unlawfully detained or could not lawfully be detained. Reading para 22 of Sch 2 together with para 16 his Lordship held that:

  1. … Applying the strict approach to interpretation which I consider is required here, these provisions must be taken to refer to detention which is lawful … The words employed are certainly not appropriate to refer to a state of purported detention or to embrace both lawful and unlawful detention. I consider that “detained” in paragraphs 22 and 29 refers to lawfully authorised detention.

The court observed that para 22 confers a power to grant bail in relation to the three categories of person specified in para 16 of Sch 2. The reference in para 16 to detention “under the authority of an immigration officer” makes it clear that the provision must refer to a lawful authorisation for detention and does not address the mere fact of detention. Rejecting the Government’s hypothesis that “detained” is used only to define the state of affairs which must exist at the time when the power is first exercised, the court said that the system of bail would fall into substantial difficulties in operation unless there is a continuing power to detain.

Please see Part Two here.

This article was originally posted here.