In Kaitey v Secretary of State for the Home Department [2021] EWCA Civ 1875 the Court of Appeal has upheld the High Court’s decision that the power to set immigration bail exists even when a person cannot be lawfully detained. As Alex commented at the time of the High Court ruling, this is an unsurprising result, as it was Parliament’s express purpose in passing the immigration bail provisions in the Immigration Act 2016.

Paragraph 1(2) of Schedule 10 of the 2016 Act provides that the Home Office “may grant a person bail if the person is liable to detention” under the various statutory powers. Mr Kaitey argued that this provision should be read as meaning “liable to lawful detention”. This interpretation would have restricted the ability of the Home Office to require migrants to follow bail conditions, such as regular reporting or electronic monitoring, where the person could not legally be put in an immigration removal centre.

Lord Justice Singh’s judgment contains a lengthy (and, at least to public law boffins, interesting) discussion of the principles of statutory construction and case law relevant to how this provision should be understood. 

In rejecting Mr Kaitey’s argument, Singh LJ decided that:

1. On its natural meaning, “liable to detention” describes a situation where there is a legal power of detention and a person can in principle be detained. The provision does not say that it must be possible to use the power lawfully.
2. The phrase “liable to detention” was interpreted by the House of Lords in Khadir [2005] UKHL 39. Applying the principle in Barras [1933] UKHL 3, this means there is a presumption that the words will have the same meaning as already decided.
3. The legislative history strongly points to this interpretation. The sequence of events shows that the purpose of enacting the relevant bail provisions was to reverse the Court of Appeal’s decision in B (Algeria) [2015] EWCA Civ 445 that immigration bail conditions under the previous legislation could only be imposed if a person could lawfully be detained. The explanatory notes to the 2016 Act also supports this interpretation.
4. This interpretation does not give rise to any issue of incompatibility with the European Convention on Human Rights.

Singh LJ also gave short shrift to an alternative argument (advanced by Bail for Immigration Detainees and adopted by Mr Kaitey) that just as there are implied limits on the exercise of the powers of immigration detention (the Hardial Singh principles), there are implied limits on the power to maintain conditional bail: 

… The whole point about the Hardial Singh principles is that they were developed in the context of administrative detention. A person on bail is not in detention. He is at liberty, although there may be conditions attached to his bail…

Mr Kaitey’s appeal was dismissed. He will now need to persuade the Supreme Court that it should depart from the decision in Khadir, or of the alternative argument that there should be implied limits to the immigration bail provisions in the 2016 Act.

This case does not, however, bear on whether judicial review proceedings can be brought because, on particular facts, bail conditions breach a person’s right to private or family life (e.g. because of the imposition of a GPS tag, which since August 2021 have started to be rolled out in deportation cases) or constitute an unlawful imprisonment (e.g. because of a curfew requirement).