In an important judgment handed down yesterday, Lord Dyson, the Master of the Rolls, overruled the Special Immigration Appeals Commission’s (SIAC’s) decision that it had jurisdiction to impose onerous bail conditions on an Algerian national, even though he could not lawfully be detained.
The Appellant had appealed to SIAC against a notice of decision to deport him in 2005, and those appeal proceedings remain outstanding. SIAC decided that it could continue to impose stringent bail conditions upon him, notwithstanding that his removal remained a remote prospect.
In a unanimous decision, the Court of Appeal confirmed that the power to grant bail and impose conditions “presupposes the existence of (and the ability to exercise) the power to detain lawfully.” The Home Secretary had argued that SIAC could still impose bail conditions because there was “some prospect” of removal, in reliance on Khadir  UKHL 39,  1 AC 207. Lord Dyson rejected those submissions, since they arose in a case about temporary admission, not bail powers; and referred to historic authority establishing that a party on bail is still “in the eye of the law in custody”.
The Court also ruled, again unanimously, that SIAC’s decision to strike out the Appellant’s appeal on the grounds that he had abused the process of the court, in refusing to disclose his and his family’s identity, was unlawful. Lord Dyson held, “I cannot be certain that, if SIAC had taken the fear of reprisals into account in the balancing exercise that it had to perform, it would have struck out the appeal.”
The judgment confirms that immigration powers of detention and bail cannot be used to address security issues nor to restrict the liberty and fundamental rights of foreign nationals who cannot be lawfully removed from the UK. This reflects the judgment of the House of Lords in A v Secretary of State for the Home Department (No 1)  2 AC 68, which declared unlawful both the derogation from Article 5 ECHR (the right to liberty and security of person) and the indefinite detention of foreign nationals under the Anti-Terrorism Crime and Security Act (ATCSA) 2001. The system of strict and draconian bail conditions has been operated by SIAC since 2005 and has been described by SIAC itself as “ATCSA lite” for a number of Algerian nationals subject to deportation proceedings since 2005. This appellant in this case, B, was himself one of those subjected to three years of detention under the 2001 Act. The legality of this state of affairs for others subject to this regime, now in existence for almost a decade, may well need further judicial review. This judgment makes clear that it is unlawful for SIAC to exercise bail powers in relation to those who cannot be lawfully detained. Indefinite imposition of strict conditions of bail is as impermissible as the indefinite detention of foreign nationals.
More information can be found in the judgment.
The Appellant was represented by Stephanie Harrison QC and Anthony Vaughan, who were instructed by Birnberg Peirce and Partners. Stephanie and Anthony are both members of the Garden Court Chambers Immigration and Public Law Teams.