Opinions Regarding Immigration Bail - Justice Elisabeth Laing
[This was an application for judicial review of 'the Defendant's decision to impose conditional bail on the Claimant' ('C'). The claim was lodged on 3 December 2019. Permission to apply for judicial review was given by May J on 23 January 2020. By an order dated 21 February 2020 Fordham J gave Bail for Immigration Detainees ('BID') permission to intervene by oral and written submissions. This is a case with potentially wide ramifications, as according to BID's evidence, there may be more than 90,000 people who are subject to immigration bail.
At the remote hearing on 4 June 2020 C was represented by Mr Goodman and Mr Fraser. BID was represented by Ms Dubinsky, Mr Vaughan and Ms Mitchell. The Secretary of State ('D') was represented by Mr Tam QC and Ms Wilsdon. I thank counsel for their helpful written and oral submissions.
This application for judicial review concerns the meaning and effect of Schedule 10 to the Immigration Act 2016 ('the 2016 Act'). It is not necessary for me to say much about the background facts, which do not seem to be in dispute in any way which is relevant to the construction of Schedule 10.]
The phrase "liable to detention" has the same meaning whether it is in a power to grant temporary admission or temporary release, or in a power to grant bail, because all of the relevant provisions are in the same series of statutes and there is an unbroken legislative line running through them.
The phrase has a broad meaning, as definitely decided in Khadir: a person is "liable to detention" whenever the detention power in question exists, whether or not the detention power can be lawfully exercised at that time.
When a court decided that the phrase had a narrower meaning, Parliament stepped in to reverse that decision by a substantial and unusual provision (s.67 of the 2002 Act) that retrospectively specified that the phrase always had a broader meaning.
In the case of the temporary admission power then under consideration, this proved to have been unnecessary, because the phrase had always had a meaning even broader than provided by s.67.When a court decided that a bail power could be exercised only within a narrower ambit, Parliament again stepped in to reverse that decision by a substantial and unusual provision (s.61(3) of the 2016 Act) that retrospectively specified that the bail power was always exercisable in wider circumstances. Parliament used the same phrase that had been in issue in Khadir and that had been the subject of the previous retrospective legislation (s.67), thus clearly intending the phrase to have had the same meaning in s.61(3) as was ultimately decided in Khadir.
The current bail powers are given effect by a provision (s.61(1)) in the same section as contained that legislative intervention, showing that when the phrase is used in the current bail powers, it must have been intended by Parliament to have the same meaning as in s.61(3).
If the Claimant and BID are correct in their contention that "liable to detention" must be interpreted as "liable to lawful detention", then s.61(3) and the corresponding provision in the current bail powers (s.61(5)) are otiose and meaningless.
It is incorrect to say that re-detention would necessarily be unavailable following a breach of bail, if the individual was bailed when they could not have been actually detained for Hardial Singh reasons.
BID's argument that the bail powers only exist if the relevant step can be described as "pending" was exactly the argument rejected by the House of Lords in Khadir.
The current bail powers do not only exist where the individual was previously lawfully detained, because although under the 1971 Act an individual could only be bailed if they were actually detained, the circumstances in which bail may be granted have been expressly widened from those in the 1971 Act.
It is unnecessary for the court to create Hardial Singh-type limits on the exercise of the bail powers, because there is judicial control over the almost infinite variety of combinations of bail conditions, which can if appropriate be relaxed to meet the circumstances of the case.
Article 5 ECHR has nothing to do with any of this, because bail deprives an individual of liberty for A5 purposes only in rare circumstances, and if it does, then their A5 rights can be respected through the exercise of that judicial control.
Even if these submissions are rejected and an individual can no longer be bailed, it does not follow that they are automatically entitled to leave to enter or remain.