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Duncan Lewis Solicitors granted permission on further case to challenge imposition of bail conditions on individuals that cannot be lawfully detained (24 January 2020)

Date: 24/01/2020
Duncan Lewis, Main Solicitors, Duncan Lewis Solicitors granted permission on further case to challenge imposition of bail conditions on individuals that cannot be lawfully detained

On 23 January 2020, a client of Duncan Lewis Solicitors was granted permission to challenge the continued imposition of conditional immigration bail against him in circumstances where he says he can neither be lawfully detained nor removed from the UK.

This is now the third Duncan Lewis client to be granted permission in such a challenge. The two previous cases, FAM v SSHD (CO/995/2019) and LDP v SSHD (CO/3467/2019), were both granted permission on a similar basis in 2019 and have since been settled by the Home Office with leave to remain granted in each case. A similar case, AKE v SSHD, has similarly settled favourably.

The current Claimant, a Guinean national, has been in the UK for 13 years. He was refused asylum in 2007 and following a conviction for possessing false documents, became the subject of a deportation order in 2009. Attempts were made by the Home Office from 2010 to obtain an emergency travel document (“ETD”) from the Guinean Embassy to effect his removal from the UK but proved unsuccessful with the Embassy determining in August 2016 that he was not Guinean. The Claimant has been on conditional immigration bail since his release from immigration detention 9 years ago in January 2011, being denied the right to work or study and being required to report to the Home Office every week. The Home Office have made no attempts to try re-document the Claimant since 2016, and in the current litigation they have even confirmed that no consideration has even been given as to whether to re-detain the Claimant.

In light of this, Judicial Review proceedings were brought on 3 December 2019 on the following basis:

  1. It was unlawful to maintain bail conditions. Bail cannot be imposed under Schedule 10 to the Immigration Act 2016 on a person who cannot lawfully be detained or removed. The Claimant would not be lawfully detained for a breach of his bail, there was no longer any prospect of removal and he could not be left in a legal limbo meaning that he must be granted leave to remain.

  2. That given there is no longer any prospect of removal from the UK, there is no power to detain him and no associated power or jurisdiction to grant bail, and that therefore the power to detain and grant bail has simply come to an end.

  3. That Schedule 10 was required by the Human Right Act 1998 to read compatibly with Article 5 ECHR as to authorise the restrictions on liberty authorised by bail only where this is a subsisting lawful power to detain and/or which can be lawfully exercised in breach of bail.

  4. Alternatively, a declaration of incompatibility under the Human Rights Act was required in respect of Schedule 10, which is incompatible with Article 5 ECHR.

Permission was granted by Mrs Justice May who noted the need for “an authoritative ruling on the bail point” despite it having been raised in a number of cases which have since settled. She raised particular concerns that there were “no further steps which are being, or can be, taken to execute the deportation order made in respect of the Claimant in 2009” and that “the question of his status in these circumstances ought to be determined, specifically whether it is lawful for him to remain on conditional bail and, if not, whether his presence in the UK should now be regularised.”

The final hearing in this matter is likely to be listed in the next few months.

The Claimant is represented by Lewis Kett, Helen Baron, and Toufique Hossain of the Harrow Public Law team. They have instructed Alex Goodman and Matthew Fraser at Landmark Chambers.

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