In a major new ruling on powers to restrict the liberty and freedoms of those who cannot lawfully be detained, the Supreme Court today rejected the Home Secretary’s argument that strict conditions of bail under Schedule 2 of the Immigration Act 1971 could be imposed indefinitely. Stephanie Harrison QC and Anthony Vaughan of the Garden Court Chambers Immigration and Public Law Teams represented the respondent in R (B) v Special Immigration Appeals Commission.
In a unanimous judgment, the Court ruled that bail under the 1971 Act was not appropriate where a person could not be detained lawfully and compatibly with the Hardial Singh principles. In doing so, the Supreme Court has vindicated core and long standing protections of liberty in the United Kingdom’s common law dating back many centuries.
The Respondent to the Home Secretary’s appeal, who is anonymised as B, had been subject to stringent bail conditions imposed by the Special Immigration Appeals Commission (SIAC), including a curfew, electronic monitoring, remaining within a defined boundary area and twice daily reporting. However, SIAC continued to impose those conditions on B even after it had ruled that B’s removal from the United Kingdom was so remote that he could not be detained compatibly with the Hardial Singh principles. B challenged that decision by judicial review and was successful in the Court of Appeal, which quashed SIAC’s decision.
The Home Secretary’s appeal to the Supreme Court was also opposed by the charity Bail for Immigration Detainees (BID), in a valuable intervention. The powers to grant bail by the First-tier Tribunal (FTT) are materially the same as those of SIAC, and so the appeal carried wider implications for the operation of the regime for immigration bail in the United Kingdom.
In dismissing the Home Secretary’s appeal, the Supreme Court adopted the finding of the Court of Appeal that, “it would be extraordinary if Parliament had intended to confer the power to grant bail where a person had been unlawfully detained or could not lawfully be detained” (paragraph 31). The Court comprehensively rejected the Home Secretary’s case to the contrary.
Although Court’s judgment deals with the correct construction to the bail regime under the 1971 Act, which was repealed on 15 January 2018, the Court’s ruling remains highly relevant to the application of the new bail framework under Schedule 10 to the Immigration Act 2016. Some important points arising out of the judgment include:
- The Court ruled that, as a matter of principle, statutory powers conferring the power to grant bail should be interpreted “strictly and restrictively”, applying the fundamental principle of the common law that “in enacting legislation Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear” (paragraph 29);
- While accepting that the grant of bail “is not a determination of the legality of detention” including for the purposes of Article 5(4) ECHR (paragraphs 50-51), the Court noted that the FTT “is clearly entitled to address the Hardial Singh principles” as a relevant factor within a bail application, which had been recognised in the previous Bail Guidance (paragraph 41(3));
- The Court accepted that, “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” (paragraph 48);
- The Court noted the possibility of “statutory inroads” into this core principle of the common law (paragraphs 53-54). Nevertheless, the 1971 Act did not make such an inroad, and the general principle prevailed (paragraph 55);
- The fact that a person on bail could be re-detained for breach of bail supported this conclusion since “This would not be possible in the absence of a subsisting lawful power to detain. In the absence of such a power, conditions of bail and recognizances entered into would be unenforceable” (paragraph 32);
- Having rejected the Home Secretary’s construction of the 1971 Act, the Court did not need to address whether the statutory scheme under the 1971 Act was compatible with Article 5 ECHR. Powerful submissions were, however, made in particular on behalf of BID, explaining why the Home Secretary ‘s approach would inevitably conflict with Article 5 of the ECHR, which was based upon and informed by the principles of the UK’s common law.
The Supreme Court therefore expressed no opinion on the lawfulness of the new bail regime under Schedule 10 of the Immigration Act 2016, notably the retrospective provision which states that bail can be granted even if the person can no longer be detained (Schedule 10, para 1(5); see also section 61(3), which the SSHD agreed not to rely on against B).
These issues will need to be addressed in a future case but even if Parliament is found to have overridden a longstanding principle of the common law, it is unlikely that a Court will rule these provisions to be lawful because they are incompatible with that principle which is also enshrined in Article 5 ECHR.
A full copy of the Supreme Court judgment is available here.