10th December 2021
Robin Tam QC 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 in R (Kaitey) v Home Secretary  EWCA Civ 1875, 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.
In finding that the phrase did not mean ‘liable to lawful detention’ but required only the existence of a detention power at the time in question, in line with authoritative interpretation by the House of Lords of the same phrase in the predecessor legislation, the Court considered and applied a number of common law aids to statutory interpretation. The Court also set out the approach required by s. 3 of the Human Rights Act 1998, which it found to be inapplicable to the present appeal; rejected an argument based on Article 5 ECHR; and found that there was no basis to import the Hardial Singh principles into the context of the grant of bail.