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On appeal from: [2015] EWCA Civ 445

The Supreme Court unanimously dismissed the appeal.

The Secretary of State suggested that a purposive interpretation of the legislation should apply so that bail is available regardless of whether the individual is lawfully detained or would hypothetically be lawfully detained. The Court saw no basis for such an approach. It is a fundamental principle of the common law that Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear. Accordingly, the Court was required to interpret the statutory provisions strictly and restrictively.

It was common ground that being “detained” was a condition precedent to the exercise of the power to grant bail conferred by paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971. Applying the strict approach to interpretation, the Court found that the reference to “detained” means lawful detention. Furthermore, “detained” does not only refer to the state of affairs which must exist at the time when the power is first exercised.  Where it ceases to be lawful to detain a person pending deportation there is no longer a power of detention under paragraph 16 of Schedule 2, and there is therefore no longer a power to grant bail under paragraphs 22 or 29.

The Secretary of State submitted that as both bail and temporary admission or temporary release are “ameliorating possibilities” of alternatives to detention, it is sensible for both powers to persist for some duration beyond the point at which actual detention can no longer continue. Temporary admission or release is covered by paragraph 21 of Schedule 2. However, unlike paragraphs 22 and 29, it refers to a person “liable to be detained” and not “detention” which is a material difference. Accordingly, the comparison does not assist the Secretary of State.

The Court did not agree with the Secretary of State’s submission that the interpretation of paragraphs 22 and 29 favoured by the Court of Appeal would lead to impracticability in their application. In any event, if administrative inconvenience is a consequence the remedy lies with Parliament.

The Court found considerable modern authority which supported the Court of Appeal’s statement of principle that the power to grant bail presupposes the existence of and the ability to exercise the power to detain lawfully. However, this is not necessarily a principle of universal application. While the clearest possible words would be required to achieve a contrary result, Parliament could do so.

For judgment, please download: [2018] UKSC 5
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (14 Nov 2017 morning session) (14 Nov 2017 afternoon session) (15 Nov 2017 morning session)