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Pre-Immigration Act 2016 bail ends after an appearance before an immigration officer


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R (Lucas) v Secretary of State for the Home Department [2018] EWCA Civ 2541 is about re-detention following the grant of immigration bail by the First-tier Tribunal under the now repealed provisions of the Immigration Act 1971. The Court of Appeal ruled that tribunal bail finishes once the person has appeared before an immigration officer, at which point the immigration officer may grant a further period of bail or re-detain them. There is no requirement to bring the person back to the First-tier Tribunal to ask for permission to re-detain.

It is important to note that the instances of bail and re-detention in this appeal occurred before the changes to the bail system under the Immigration Act 2016 came into force. The 2016 Act stipulates that bail comes to an end if the person is no longer liable to be detained, granted leave to remain, detained or removed from the UK. It also explicitly states that the grant of bail does not prevent the Secretary of State from re-detaining the person, so the issue in this appeal will no longer arise in practice.

Mr Lucas and Mr Aboro had both been granted bail by the First-tier Tribunal, including a condition requiring them to appear before an immigration officer, following previous periods of detention. They were re-detained in the summer of 2016 to participate in travel document interviews with the Nigerian High Commission.

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The Secretary of State made no attempt to produce them before the First-tier Tribunal. Neither of the men were removed and both were later granted bail by the tribunal. They argued that the Secretary of State should have applied to the tribunal to withdraw the previous grant of bail before re-detaining them. The Secretary of State argued that tribunal bail can only be for a finite duration of time, either until a further appearance at the tribunal or until an appearance before an immigration officer.

Lord Justice Hickinbottom agreed with the Secretary of State. He considered himself bound to do so by the Court of Appeal decision in R (AR (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 807. In that case, the court had held that the Home Office could vary bail conditions unilaterally once the individual had appeared before an immigration officer because the original grant of bail by the First-tier Tribunal came to an end. The judge stated:

That situation appears to be covered squarely by AR (Pakistan), Longmore LJ’s analysis being to the effect that the form of grant of bail used by the FtT was one which would have expired when Mr Lucas surrendered himself on 12 August 2014, with any conditions continuing as conditions of bail granted by the immigration officer. This court is bound by AR (Pakistan); but, for the avoidance of doubt, I should make clear that I agree with Longmore LJ’s analysis.

Mr Aboro raised a further argument about the circumstances of his re-detention. In contrast to Mr Lucas, he had been re-detained in his home rather than at an appearance before an immigration officer. Mr Aboro argued that there was no power to arrest and re-detain him unless he had breached a bail condition or the Secretary of State believed he was about to do so. Hickinbottom LJ also dismissed this argument, although with greater hesitancy than the primary ground of appeal:

I see no reason in principle why the Secretary of State, through her immigration officers, cannot bring bail which she has given to an end where there has been a change in circumstances

In any event, it would have been open to the immigration officer to have required Mr Aboro to attend him at short notice, in variation of the terms of bail, whereupon his bail would have terminated and he could then have been re-detained under paragraph 17 of Schedule 2 in any event. Therefore, even if I am wrong in considering that an immigration officer can use paragraph 17 during the course of immigration officer bail, Mr Aboro has suffered no loss or harm as a result.

The conclusion of the Court of Appeal on the main issue is unassailable because the court was clearly bound by AR (Pakistan). It is much less certain that it was correct to refuse the secondary argument made by Mr Aboro. The old statutory framework for immigration bail in the 1971 Act notably limited the circumstances in which the Secretary of State may re-detain someone. In this case she gave Mr Aboro no notice of his impending interview with the Nigerian authorities nor any opportunity to convince an immigration officer that he would attend the interview without being detained.

Hickinbottom LJ almost acknowledges that the correct approach would have been to vary Mr Aboro’s bail conditions to require him to appear before an immigration officer at short notice, at which point the officer could have decided whether it was necessary to re-detain him. On this point the Court of Appeal has let the Secretary of State get away with not complying with the law.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers