Supreme Court ruling on power to impose immigration bail conditions

Immigration bail is a complex matter in Immigration Law. Supreme Court judgement in B (Algeria) (Respondent) v Secretary of State for the Home Department (Appellant) [2018] UKSC 5 is a major new ruling on powers to restrict the liberty and freedoms of those who cannot lawfully be detained.

The policy that sets out “immigration bail” including the power of arrest and re-detention of persons on bail under paragraphs 22 and 29 of Schedule 2 is provided for under paragraph 24 of Schedule 2 to the 1971 Act which provides:

“24. –

(1) An immigration officer or constable may arrest without warrant a person who has been released by virtue of paragraph 22 above –

(a) if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond that he will appear at the time and place required or to break any other condition of it, or has reasonable ground to suspect that that person is breaking or has broken any such other condition; or

(b) if, a recognizance with sureties having been taken, he is notified in writing by any surety of the surety’s belief that that person is likely to break the first-mentioned condition, and of the surety’s wish for that reason to be relieved of his obligations as a surety;

and paragraph 17(2) above shall apply for the arrest of a person under this paragraph as it applies for the arrest of a person under paragraph 17 .

(2) A person arrested under this paragraph –

(a) if not required by a condition on which he was released to appear before an immigration officer within twenty-four hours after the time of his arrest, shall as soon as practicable be brought before the First-tier Tribunal or, if that is not practicable within those 24 hours, before in England and Wales, a justice of the peace, in Northern Ireland, a justice of the peace acting for the petty sessions area in which he is arrested or, in Scotland, the sheriff; and

(b) if required by such a condition to appear within those 24 hours before an immigration officer, shall be brought before that officer.

(3) Where a person is brought before the First-tier Tribunal, a justice of the peace or the sheriff by virtue of sub-paragraph (2)(a), the Tribunal, justice of the peace or sheriff –

(a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either –

(i) direct that he be detained under the authority of the person by whom he was arrested; or

(ii) release him, on his original recognizance or on a new recognizance, with or without sureties, or, in Scotland, on his original bail or on new bail; and

(b) if not of that opinion, shall release him on his original recognizance or bail.”

On 12 May 2016 the Immigration Bill 2016 received royal assent. Section 61 of the Immigration Act 2016 provides in material part:

“(3) A person may be released and remain on bail under paragraph 22 or 29 of Schedule 2 to the Immigration Act 1971 even if the person can no longer be detained under a provision of the Immigration Acts to which that paragraph applies, if the person is liable to detention under such a provision.

(4) The reference in subsection (3) to paragraph 22 or 29 of Schedule 2 to the Immigration Act 1971 includes that paragraph as applied by any other provision of the Immigration Acts.

(5) Subsections (3) and (4) are to be treated as always having had effect.”

As immigration bail is becoming part of the Secretary of State’s policy to detain and remove migrant from the UK, there has been a number of matters that go before the judicial review process. Over time these principles have been elaborated and refined. In R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, Lord Dyson JSC summarised them as follows (at para 22):

“It is common ground that my statement in R (I) v Secretary of State for the Home Department[2003] INLR 196, para 46 correctly encapsulates the principles as follows: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”

With regard to determining what is a reasonable period of immigration detention, Lord Dyson (at para 104) repeated his earlier conclusion in I‘s case (at para 48):

“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”