B (Algeria) v Secretary of State for the Home Department [2018] UKSC 5

B, an Algerian national subject to deportation on national security grounds, could not lawfully be removed or detained under Hardial Singh principles. The Supreme Court held that SIAC had no power to grant immigration bail where lawful detention was no longer possible.

Facts

B, an Algerian national, had been in the United Kingdom since 1993 and had a lengthy and complex immigration history, including detention under anti-terrorism legislation and the subsequent making of a control order. On 11 August 2005, the Secretary of State decided to make a deportation order against him on national security grounds under sections 3(5) and 5(1) of the Immigration Act 1971, and he was detained under paragraph 2(2) of Schedule 3 to that Act. It was accepted throughout that B could not safely be removed to Algeria without specific assurances, because of the real risk of article 3 ECHR-incompatible treatment.

B refused to disclose his true identity, despite orders from SIAC, and was eventually committed for contempt. On 13 February 2014, SIAC found that there was “no reasonable prospect of removing [B] to Algeria and thus the ordinary legal basis for justified detention of B under the Immigration Acts has fallen away”. The Secretary of State accepted there was no further authority for B’s detention. Nevertheless, SIAC concluded on 1 July 2014 that it retained jurisdiction to impose bail conditions on B. The Court of Appeal reversed that ruling, holding that SIAC had no jurisdiction to impose bail conditions where detention would be unlawful. The Secretary of State appealed.

Issues

The central issue was whether a power existed under the Immigration Act 1971 (specifically paragraphs 22 and 29 of Schedule 2) to grant immigration bail to a person who could no longer be lawfully detained under paragraph 2(2) of Schedule 3, by reason of the Hardial Singh principles.

Arguments

Secretary of State

Mr Tam QC urged a purposive interpretation of the legislation, contending that the bail power was designed to enable release from detention and should be available regardless of whether detention was lawful at the time bail was granted. He emphasised that bail was particularly important in cases involving dangerous criminals and national security risks because bail conditions could be more stringent than conditions attached to temporary admission. He relied on the approach in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207, submitting that the power to grant bail, like the power to grant temporary admission, should subsist so long as the power to detain exists, even if it cannot lawfully be exercised. He also argued that the Court of Appeal’s interpretation would create impracticability, requiring the First-tier Tribunal or immigration officers to resolve complex Hardial Singh issues as a jurisdictional matter.

Respondent

Ms Harrison QC argued that bail was predicated on lawful detention, so that when the Hardial Singh limit was reached, the ability to grant or maintain bail fell away simultaneously. She pointed to features of the bail scheme—such as the requirement to enter a recognizance and the need for a subsisting power of re-detention to enforce breach of conditions—which would be unworkable without a continuing lawful power to detain.

Judgment

The Supreme Court unanimously dismissed the Secretary of State’s appeal. Lord Lloyd-Jones (with whom Lady Hale, Lord Mance, Lord Hughes and Lord Hodge agreed) gave the judgment.

Principle of strict construction

The Court held that the statutory provisions had to be construed strictly and narrowly because bail conditions can severely curtail liberty, potentially to the point of deprivation of liberty within article 5(1)(f) ECHR. The principle of legality applied. Lord Lloyd-Jones cited Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115:

Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Interpretation of “detained”

The Court concluded that “detained” in paragraphs 22 and 29 of Schedule 2 meant lawfully detained. Paragraph 16 referred to detention “under the authority of an immigration officer”, indicating lawful authorisation. It would be extraordinary if Parliament had intended to confer the power to grant bail where a person could not lawfully be detained.

Khadir distinguished

The Court distinguished Khadir, noting: (1) it concerned temporary admission under paragraph 21, not bail; (2) there was a material difference between the wording “liable to be detained” in paragraph 21 and “detained” in paragraphs 22 and 29; and (3) there was no warrant for transposing the existence/exercise distinction to the bail context.

Practical objections rejected

The Court rejected the Secretary of State’s arguments based on impracticability. The First-tier Tribunal was well equipped to consider Hardial Singh principles, and applications disputing jurisdiction would be rare. The police arrest power under paragraph 24(1)(a) does not depend on a continuing power of immigration detention.

Bail presupposes lawful power to detain

The Court endorsed the line of authority, including Stellato v Ministry of Justice [2011] QB 856 and R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin), holding that the grant of bail presupposes the existence of, and ability to exercise, a lawful power to detain. However, Lord Lloyd-Jones preferred to ground his conclusion on the interpretation of Schedule 2 itself, recognising that Parliament could displace the general principle with sufficiently clear words (as, for example, in section 61 of the Immigration Act 2016, which was not relied on in this appeal).

Implications

The decision establishes that, under paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 as they stood before the Immigration Act 2016, immigration bail could not be granted to a person who could no longer lawfully be detained under the Hardial Singh principles. The power to grant bail presupposed a lawful power to detain.

The judgment reinforces fundamental constitutional principles: where statutory provisions may affect liberty, they must be construed strictly, and the principle of legality requires clear words before general language will be taken to authorise coercive measures. The decision is significant for practitioners handling immigration detention and bail, particularly in national security and foreign national offender cases where release conditions may be onerous.

The Court noted that Parliament retained the ability to change the position, and indeed had done so prospectively through section 61 of the Immigration Act 2016, which explicitly allows bail even where detention is no longer lawful, provided the person remains liable to detention. The Secretary of State did not rely on that provision in this appeal, and the Court’s analysis was confined to the pre-2016 regime. The decision therefore has limited application to bail granted under the revised statutory framework, but remains an important authority on the interpretation of coercive statutory powers affecting liberty and on the relationship between bail and lawful detention more generally.

Verdict: The Supreme Court dismissed the Secretary of State’s appeal, holding that bail may not be granted under paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 where a person is unlawfully detained under paragraph 2(2) of Schedule 3, or where a person not currently detained could not lawfully be detained under that provision.

Source: B (Algeria) v Secretary of State for the Home Department [2018] UKSC 5