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Robin Tam KC and Emily Wilsdon appeared for the Home Secretary when successfully resisting an appeal, potentially affecting a large number of people, about whether the Secretary of State has the power to place a person on bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 in circumstances in which it would be unlawful actually to exercise a power to detain them.
In the central part of the appeal, the Court of Appeal considered the meaning of the phrase ‘liable to detention’ in the legislation, and whether the concept of ‘immigration bail’ in the new scheme enacted in Sch. 10 to the 2016 Act was related to historical concepts of bail and to the concept of bail in the predecessor legislation.
The Appellant argued that the phrase ought to be read as ‘liable to lawful detention’, and that as he could no longer lawfully be detained in immigration detention, and had thus been released, he could not be placed on immigration bail. Lord Justice Singh, with whom Lord Justice Nugee and Sir Stephen Richards agreed, found that the natural meaning of the phrase ‘liable to detention’ refers to a person who can in principle be detained: in other words, there exists a legal power to detain them. The phrase does not mean ‘liable to lawful detention’. The Court’s interpretation of the phrase in the 2016 Act was the same as the way in which the same phrase in the predecessor legislation had been interpreted by the House of Lords in Khadir. The legislative history pointed strongly towards this interpretation, as did both the history and the wording of the 2016 Act itself. Historical concepts of bail were not relevant: the 2016 Act contains the new concept of ‘immigration bail’, and the transitional provisions demonstrate that this covered, for example, those previously on temporary admission or a restriction order.
The Court also set out the approach required by s. 3 of the Human Rights Act 1998, and found that because the ordinary interpretation of the 2016 Act is not incompatible with Convention rights, there is therefore no warrant for applying s. 3 HRA. In addition, Article 5 ECHR was not relevant to the interpretation of the phrase as the Appellant’s bail conditions did not amount either to an imprisonment or a deprivation of liberty; and on the ordinary interpretation of the phrase there would still be remedies under the HRA concerning any breach of Convention rights, if the facts of a particular case justify it.
Finally, the Court found that there was no basis to import the Hardial Singh principles into the context of the grant of bail, as argued by the Appellant and the Intervener (Bail for Immigration Detainees) – a person on bail is not in detention, he is at liberty, although there may be conditions attached to his bail.
The Court also observed that grounds of appeal are not the same thing as submissions applying for permission to appeal (which should be set out in a skeleton argument in support of those grounds), and it is important that grounds are clearly and concisely formulated so that everyone concerned knows exactly what is within the scope of the appeal.