Lawful Detention is a Precondition for Granting Bail

B (Algeria) v Secretary of State for the Home Department [2018] UKSC 5 (8 February 2018)

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 Schedule 3 of the 1971 Act.

The UK sought assurances from Algeria that B would not be treated in breach of article 3 of the ECHR 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 paragraphs 22 and 29 of Schedule 2 of the 1971 Act where someone is unlawfully detained purportedly under paragraph 2(2) of Schedule 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 paragraphs 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.

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 paragraph 2 of Schedule 3 (who could be released on bail) from someone liable to detention under paragraph 21 of Schedule 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 paragraphs 22 and 29 of Schedule 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 section 3 of the SIAC Act 1997 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 paragraph 22 of Schedule 2 together with paragraph 16 his Lordship held that:

31. … 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 paragraph 22 confers a power to grant bail in relation to the three categories of person specified in paragraph 16 of Schedule 2. The reference in paragraph 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.

Lord Lloyd-Jones found that B’s situation fell into the category of case Lord Dyson had in mind in Lumba where a person’s detention pending deportation ceases to be lawful no matter how grave the risk of absconding or the risk of serious offending. Once that threshold is satisfied the power of detention under paragraph 16 falls away and with it so does the power to grant bail under paragraphs 22 or 29.

Reliance was placed in Khadir [2005] UKHL 39 to argue that because bail and temporary admission or temporary release are “ameliorating possibilities” of alternatives to detention, it is realistic for both powers to continue for some time beyond the point at which actual detention can no longer continue. The court rejected the approach because in distinction to paragraphs 22 and 29 temporary admission or release under paragraph 21 of Schedule 2 refers to a person “liable to be detained” and not “detention”. Since this is a material difference the comparison was unattractive and had to be declined.

Lord Lloyd-Jones refused to accept a series of misguided challenges on the basis of jurisdiction, the minor status of officers capable of granting bail and the purported undesirability of junior officers misunderstanding the law. Moreover, rejecting an anomalous argument based on SK (Zimbabwe)[2011] UKSC 23 – where an unpublished policy on detention conflicted with a published policy – he held that:

45. Accordingly, I consider that the spectre of impracticability conjured up by Mr Tam is illusory and does not cast any doubt on my reading of paragraphs 22 and 29. There is no reason to conclude that Parliament must have intended to confer a power to grant bail where a person is detained unlawfully.

There was no doubt in his Lordship’s mind that that the statutory provisions in play required a lawful power to detain as a pre-condition to a grant of bail. Any consequential administrative inconvenience was to for Parliament to remedy. For Lord Lloyd-Jones:

48. As a matter of legal instinct, the proposition that the ability to exercise a lawful power to detain is a precondition to a power to grant bail seems entirely sound. Not only does it seem correct as a matter of principle, but also the lack of a lawful power to detain is likely, without more, to give rise to practical difficulties.

Habeas corpus cases including those utilised by Dyson MR, did not greatly assist the Supreme Court. However, ample modern authority corroborated the Court of Appeal’s conclusion that the power to grant bail presumes the existence of and the ability to exercise the power to detain lawfully. The judgments in Stellato [2010] EWCA 1435, Konan [2004] EWHC 22 Admin and Omar Othman [2012] EWHC 2349 (Admin) confirmed the legitimacy of this principle. The court refused to accept nine first instance authorities invoked by the Home Office to make the counter-point that the conventional approach to bail allows for bail conditions to be imposed as an alternative to detention after the actual detention is rendered unlawful applying Hardial Singh. The argument lacked authenticity.

Despite the key finding that the grant of bail presupposes lawful detention, Lord Lloyd-Jones subjected his judgment to the caveat that this rule is not necessarily a principle of universal application and is restricted to the interpretation of the provisions of Schedule 2 of the 1971 Act. Parliament could achieve a contrary result by using the clearest possible words. The court observed that the provisions governing police bail in sections 34, 37 and 41 of the Police and Criminal Evidence Act 1984 may be exceptions to the general principle and section 61 of the Immigration Act 2016 also falls into this grouping. Arguments stemming from article 5 of the ECHR added nothing to the resolution of the issues in B’s appeal.

Comment

With up to 3500-4500 detainees at any given time, the UK operates one of the largest immigration detention estates in Europe and 30,000 people are detained annually. Officials, not judges, sanction detention and the absence of a time limit on immigration detention means that abuses of power can be rather severe. Vulnerable people such as the elderly, pregnant women, children, rape survivors and survivors of torture and trafficking lengthily languish in detention whereas only less than half of those detained are actually removed.

In addition to the high costs of detention, damages of £13.8 million were paid to 573 claimants between 2012-2015. During 2016-17, the Home Office had a litigation budget of £92.67 million and also paid £1.8 million in damages in 32 cases of unlawful detention. The system is so cruel that some detainees resort to taking their own lives. There were 10 deaths in 2017 and most of the deceased detainees committed suicide. Rona Epstein therefore unsurprisingly concludes that “respect for human rights appears to be singularly lacking in the entire process and that the system is urgently in need of fundamental reform.”

The “hostile environment” created by the complex statutory machinery of the 2016 Act is such that section 61 gives effect to Schedule 10 (immigration bail). Indeed, a person may be released and remain on bail under paragraph 22 or 29 of Schedule 2 to the 1971 Act even if the person can no longer be detained under a provision of the Immigration Acts to which that paragraph applies, if they are liable to detention under such a provision.

Under the expanded powers, arrest for breach of immigration bail is addressed by Schedule 10 and paragraph 10(1)(b) allows an immigration officer to arrest without warrant a person on immigration bail if reasonable grounds exist for suspecting that the person is failing, or has failed, to comply with a bail condition. Overall paragraph 10 of Schedule 10 replaced the current powers of arrest for breaches of bail in Schedules 2 and 3 to the 1971 Act. This is separate to the arrest power immigration officers have under section 28A of the 1971 Act for illegal entry and similar offences in section 24(1) of that Act.

Notably, returning the law to position prior to the Court of Appeal’s judgment in B’s case, subsections (3) and (4) of section 61 of the 2016 Act clarify that a person may be released, and remain on, bail under Schedule 2 to the 1971 Act where they are liable to detention, even if they can no longer be detained. Significantly, subsection (5) gives retrospective effect to subsections (3) and (4) with the draconian result that they must be treated as always having had effect. Overall, evaluated against the “hostile environment” the present judgment sheds ample light on the old legislative regime but says nothing about the mysteries of the new legislative order.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 3, Article 5, Bail, ECHR, Immigration Act 2016, Judicial Review, Terrorism, UKSC and tagged , , , , . Bookmark the permalink.

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