In R (BVN) v Secretary of State for the Home Department [2022] EWHC 1159 (Admin) the High Court has confirmed that the Secretary of State has no power to interfere with the conditions attached to a grant of High Court bail. It is an unusual issue and the judgment contains some rare analysis of the distinction between High Court bail and interim relief in unlawful detention proceedings. There is also a potential practical benefit to foreign national offenders seeking release from immigration detention without an electronic tag.

The lesser-spotted High Court bail

Once a detainee has brought an unlawful detention claim and persuaded a judge they should be released at an interim relief hearing, the judge has two options. The first, and probably most common option, is for the court to issue an injunction which requires the Secretary of State to exercise her powers to grant the detainee immigration bail. The second option is to use the High Court’s inherent jurisdiction to grant bail for the duration of the proceedings, a power identified by Sir John Donaldson MR in R v Secretary of State for the Home Department ex p Turkoglu [1988] QB 398. In theory, at least, the second option gives the High Court more direct control over the exact conditions imposed.

In this case, the judge ordering release wanted to impose bail conditions not for any immigration purpose but rather to protect BVN from re-trafficking upon release. He therefore decided to pursue the second option and grant High Court bail. The Secretary of State had other ideas and, five days after release, decided to impose a reporting condition on BVN.

No Home Office power to vary

Mr Justice Bourne concluded that the imposition of that reporting condition was unlawful. The only option for the Secretary of State if she wanted to impose a reporting condition would be to apply to the High Court to vary the grant of bail:

In my judgment, such an application was the only remedy open to the Defendant if she wished to impose an additional condition such as the reporting condition which restricted the Claimant’s liberty.

The authorities make it quite clear that the rule of law requires the executive to abide by the orders of courts or tribunals, save where permitted to do otherwise by further such orders or legislative intervention. I do not read the case of Brandenburg as narrowing that principle in any way. The question in every case is whether the executive’s action is inside or outside the scope of what the court or tribunal’s order permits

It is not a surprising result and vindicates the principle of the separation of powers.

Avoiding electronic tagging… temporarily

The decision may have some relevance to foreign national offenders who are choosing between applying to the First-tier Tribunal for immigration bail or filing an unlawful detention claim in the High Court. Under Schedule 10 to the Immigration Act 2016, electronic tagging for such offenders is mandatory unless the Secretary of State indicates that the imposition of the tag would violate the person’s European Convention rights. But as the judgment of Bourne J makes clear, High Court bail is entirely distinct from immigration bail and therefore a High Court judge would be free to grant bail without imposing an electronic monitoring condition. That said, any benefit would be temporary: once the judicial review proceedings came to an end, the grant of High Court bail would also cease, opening the way to immigration bail conditions.

Dropping out of the NRM

BVN raised a completely separate ground of challenge about potential victims of human trafficking being allowed to withdraw from the National Referral Mechanism process. Bourne J rejected an argument that people in the trafficking system should be given information or advice before deciding to withdraw from the NRM. The judge said:

I do not consider it implicit (or explicit) in that requirement that any specific ‘counselling and information’ will be necessary if and when the individual decides to withdraw. Rather, if an individual is given sufficient counselling and information to enter the NRM on a sufficiently informed basis, it seems to me that that individual will be armed with sufficient information to decide whether or not to withdraw.

He added that Article 4 of the European Convention on Human Rights “cannot be interpreted as mandating any specific steps to be taken when an individual indicates a wish to leave the NRM. That is not least because of the difficulty of identifying the necessary steps”.