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The legislative framework predicated (i) bail on the individual being detained, and (ii)asad-khan temporary admission on a person being either liable to detention or being detained. Dyson MR held that bail may not be granted under paras 22 and 29 of Schedule 2 of the 1971 Act where someone is unlawfully detained purportedly under Sch 3, para 2(2) or where someone not currently in detention could not lawfully be detained under that provision. Considering Tan Te Lam [1997] AC 97, his Lordship construed paras 22 and 29 restrictively and held that:

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

Mitchell (1823) 2 D & R and Amand [1941] 2 KB 239 fortified this analysis. Mitchell held that the writ of habeas corpus can still issue where someone is on bail. Amand concerned a Dutch deserter’s unsuccessful application for a writ of habeas corpus. Proceeding as if he were still detained in custody, Caldecote CJ held that it made no difference that Amand was on bail. The court, however, held that detention was justified. Dyson MR judged that the corollary must be that, if detention had instead been unauthorised, a writ of habeas corpus would have issued. He held that:

33. The power to grant bail presupposes the existence of (and the ability to exercise) the power to detain lawfully.

Allowing B’s appeal against the refusal to grant judicial review of the decision to grant bail, his Lordship concluded:

36. I see no basis for holding that the difficulty of the decisions that are involved is such that Parliament must have intended to give immigration officers the power to grant bail where a person is being detained unlawfully.

(ii) The Strike Out Appeal

In Summers v Fairclough Homes [2012] UKSC 26, Lord Clarke held that that the court has power to strike out a statement of claim on the ground that the claim is an abuse of the process of the court at any time. However, only in very exceptional circumstances should the power to do so at the end of a trial be exercised. “The test in every case must be what is just and proportionate,” and the court must be satisfied that the abuse is such that a party forfeits the right to have his claim determined.

Justice and proportionality required weighing the seriousness of the abuse of process against the gravity of denying B the right to pursue his appeal against the notice of intention to deport him. In striking out the appeal, SIAC failed to determine whether B’s explanation for his refusal to disclose his identity was genuine and sufficiently compelling to justify conduct which prima facie was a serious abuse of process. That was a material omission. Insight could be gained from W (Algeria) [2012] UKSC 8 into the systemic use of torture by Algeria, but that was no substitute for an assessment by SIAC. Dyson MR remained unsure whether SIAC would have made the same decision if it had taken B’s fear of reprisals into account. The case was remitted for further consideration by SIAC.

Comment

Significantly, the outcome of B’s case has wide-ranging implications because it concerns the co-existence of the power to detain and the power to grant bail. Bail for Immigration Detainees is intervening in these proceedings. At the outset, Lady Hale said that an anonymity order would be made in B’s case. But it would not be on the terms agreed by the parties for the obvious reason that in earlier proceedings B refused to identify himself. Therefore, he will be referred to as “B” in the Supreme Court. At the close of proceedings, her Ladyship expressed the court’s gratitude to those acting pro bono for the public interest in this appeal.

Please see Part One here.

This article was originally posted here.