In a judgment handed down on 13 July 2020 by Mrs Justice Laing, the High Court have dismissed our client’s application for judicial review against the Defendant’s decision to impose conditional immigration bail upon him. The judge however has subsequently granted the Claimant permission to appeal to the Court of Appeal in light of the importance of the issues raised and the number of people potentially affected by the decision.
Our client, the Claimant in this matter, contended that the power to impose conditional bail upon him under Schedule 10 to the Immigration Act 2016 (“the 2016 Act”) could not be lawfully exercised in circumstances where he could not be lawfully detained or removed. Schedule 10 had replaced the previous bail regime under the Immigration Act 1971 (“the 1971 Act”), with the power to grant temporary admission/release to a person liable to detention under the 1971 Act also removed.
The High Court however has dismissed his claim, applying the principles of the House of Lords decision in Khadir, v SSHD  1 AC 207, to find that parliament intended that immigration bail should be available even when the underlying or background power of detention cannot lawfully be exercised.
The Claimant was a Guinean national who had been in the UK for 13 years and had been subject to a deportation order since November 2009 following a conviction for possessing a false document. The Claimant had been on immigration bail continuously since January 2011 and attempts to obtain an emergency travel document to remove him to Guinea had proved fruitless, with the Home Office maintaining some belief that he may have in fact been Ghanaian but taking no steps to act upon it. It could not credibly have been said that there was a realistic prospect of the Claimant’s deportation to Guinea (or elsewhere), nor could he lawfully be detained under immigration powers.
Judicial review proceedings
Judicial review proceedings were initially brought by the Claimant on 3 December 2019 on the following basis:
- It was unlawful to maintain bail conditions. Bail cannot be imposed under Schedule 10 of the 2016 Act 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.
- That given there is no longer any prospect of removal from the UK, there was and 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.
- 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.
- Alternatively, a declaration of incompatibility under the Human Rights Act was required in respect of Schedule 10, which is incompatible with Article 5 ECHR.
The issues raised in the claim were significant with potentially wide ramifications. Bail for Immigration Detainees (BID), who were granted permission to intervene in the proceedings, estimated that there may be more than 90,0000 people who are currently subject to immigration bail in the UK.
The position under the former bail regime contained in paragraphs 22 and 29 of Schedule 2 to the 1971 Act had been considered by the Supreme Court in B (Algeria) v SSHD
AC 418. The Supreme Court held that those bail powers presupposed a power to lawfully
detain. Noting that parliament is not presumed to intend to interfere with the liberty of a subject without making that intention clear, it ruled that the “clearest possible words” [para 53] would be required to establish that bail conditions could be lawfully imposed on someone who could not lawfully be detained.
Para. 1(1) to Schedule 10 of the 2016 Act sets out the provisions under which a person can be placed in immigration detention. Para. 1(2) provides:
“The Secretary of State may grant a person bail if the person is liable to detention under a provision mentioned in sub-paragraph (1).”
Para. 1(5) provides:
“A person may be granted and remain on immigration bail even if the person can no longer be detained, if—
(a) the person is liable to detention under a provision mentioned in sub-paragraph (1) …”
In line with the principles set out in B (Algeria)
and in the absence of the ‘clearest possible words’ to say otherwise, the Claimant had submitted that these provisions must be read narrowly and strictly so that ‘liable to detention’ meant liable to lawful
detention. The provisions were required to be read compatibly with Article 5 ECHR. In addition, there would be no enforcement consequences in the Claimant breaching his bail as he could not be lawfully re-detained.
The Secretary of State for the Home Office (SSHD) in contrast sought to argue that the ‘clearest possible words’ had been achieved with the new bail powers under Schedule 10 and that she could therefore lawfully keep people on immigration bail even when it had ceased to be lawful to detain them (e.g. because there was no prospect of removal or no realistic prospect within a reasonable period of time). She sought to rely on the legislative history and the House of Lords judgment in Khadir v SSHD
 1 AC 207 which had found that a person ‘liable to be detained’ included circumstances where there was a power to detain him, even if it would not be a proper exercise of that power to do so – albeit in the context of temporary admission under para 21 of Schedule 2 to the 1971 Act.
Permission was granted by Mrs Justice May on 23 January 2020 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.”
However the claim was dismissed by Mrs Justice Laing on 13 July 2020 following a final hearing on 4 June 2020. She found that:
- When passing the 2016 Act, Parliament had intended to use the phrase ‘liable to detention’ as “authoritatively interpreted (by the House of Lords in Khadir)” and that it “intended it to mean what the House of Lords said it meant” (para 69)
- The power to grant temporary admission under para 21, Sched 2 to the 1971 Act was interpreted by the House of Lords in Khadir. As interpreted, para 21 enabled the SSHD to impose conditions as an alternative to detention when a person is liable to detention where the power to detain existed but they it not be lawfully exercised. The judge noted that the 2016 Act repealed the powers to grant temporary admission/release and bail and replaced them with Schedule 10, so one of her “starting points is that Parliament is unlikely to have intended to abolish temporary admission and not to replace it with a similar power.” [para 70]
- In Schedule 10, parliament had “repeatedly use the phrase ‘is liable to be detained’ in a context which appears… in part to coincide” with the previous powers for temporary admission and so that it was “at least probable… that Parliament intended the phrase to mean the same in this context” as temporary admission under para 21 (as defined by Khadir). The judge went on to note that the Supreme Court in B (Algeria) did not cast any doubt on the reasoning in Khadir, simply that it did not apply to the bail provisions in Schedule 2 of 1971 Act. [para 71]
- The additional phrase of ‘can no longer be detained’ (as set out in para 1(5) to Schedule 10) was “[i]n its ordinary wide enough to cover both a person whose continued detention is impractical, and a person whose continued detention would be unlawful.” [para 73]
- The judge therefore found that para 1(1) to Schedule 10 gave the SSHD “power to grant immigration bail to two groups; a person who is being detained, and a person who is liable to detention (ie, whether or not that person could be lawfully detained, per Khadir). It does not matter whether a person in the second group has previously been detained, or not. Paragraph 1(5) goes somewhat further, by covering the situation of a person who has been, but 'can no longer' be detained. It makes clear that the Secretary of State can also give immigration bail to a person who has been, but can no longer be, detained.” [para 74]
- The judge was not persuaded by the Claimant’s additional argument that this interpretation was undermined by the lack of enforcement consequences for those who breached bail [paras 76-79] (para 10(12) to Schedule 10 directs that the SSHD must either re-detain or re-bail on the same or differing conditions to someone who has deemed to have breached or likely to breach bail conditions – yet someone such as the Claimant could not be lawfully re-detained).
- She concluded that “there is nothing to displace the presumption that Parliament intended the phrase 'liable to be detained' in Schedule 10 to be interpreted as it was in Khadir, and that it is absolutely clear that Parliament intended that immigration bail should replace temporary admission, temporary release and bail, and that immigration bail should be available when the underlying or background power of detention cannot lawfully be exercised.” [para 80]
The result is that the Claimant’s on-going conditional bail has been found to be lawful even though he cannot be lawfully detained at present. The Court has found the phrase ‘liable to be detained’ in Schedule 10 to mean how it was interpreted in Khadir
, i.e. so that immigration bail should be available even when the underlying or background power of detention cannot lawfully be exercised.
Permission to appeal to the Court of Appeal
Although dismissing the claim for judicial review, on 17 July 2020 Laing J made the decision to grant the Claimant permission to appeal to the Court of Appeal. Recognising that “different views can be taken about statutory construction”
and noting “the number of people potentially affected by this decision”
, the judge held it was desirable in the interests of legal certainty that the case be considered by the Court of Appeal.
The matter will now proceed to the Court of Appeal where it will likely be heard in the first half of 2021.
The Claimant was represented by Lewis Kett
and Helen Baron
of Duncan Lewis Solicitors’ Public Law department, instructing Alex Goodman and Matthew Fraser of Landmark Chambers.
BID were granted permission to intervene in proceedings, represented by Allen & Overy LLP who instructed Laura Dubinsky, Anthony Vaughan and Eleanor Mitchell.
For any case queries, please contact Lewis Kett at email@example.com