The Supreme Court yesterday held in the case of B (Algeria) v Secretary of State for the Home Department [2018] UKSC 5 that the Home Office cannot impose bail conditions on a migrant who cannot be lawfully detained.

Or, at least, the Home Office could not do so at the relevant time, back in 2014.

In direct response to the earlier Court of Appeal judgment in this case, Parliament has legislated explicitly to permit detention in such circumstances and also passed legislation purporting to operate retrospectively.

This Supreme Court judgment may therefore turn out to be mainly of academic interest.

Background: unusual facts

The background to the case was very unusual. B was an Algerian national who had been living in the UK since 1993. He had mental health issues and was found by the Special Immigration Appeals Commission (SIAC), which hears immigration cases involving national security issues, to have been involved in terrorist activities. SIAC also held that B could not be removed to Algeria.

Because B could not be removed, he therefore could not be detained in administrative immigration detention. In the very important case of Hardial Singh it was established that the power of detention under the Immigration Act 1971 could only be used for the purpose of removal; it follows that if a person cannot be removed, that person cannot be detained.

Nevertheless, the Home Office wanted to impose bail conditions on B using the powers of the Immigration Act 1971.

In short, the Supreme Court held that this was unlawful under the legislation as it then stood because bail could only be imposed where a person could be detained.

Principles: presumption of liberty

The leading judgment is delivered by Lord Lloyd Jones and it reiterates some important basic principles. Firstly, there is a presumption of “negative liberty” i.e. that Acts of Parliament do not interfere with the liberty of the individual:

It is a fundamental principle of the common law that in enacting legislation Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear…

Secondly, legislation should be interpreted as far as possible so as not to interfere with the liberty of the individual. The earlier case of In re Wasfi Suleman Mahmod [1994] EWHC 3 (Admin) is cited with approval:

While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards

The words of Lord Hoffman in R v Secretary of State for the Home Department, Ex p Simms [1999] UKHL 33 are also cited:

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

In short, being “detained” is a condition precedent to the exercise of the power to grant bail and because B could not now be detained he could not be subject to bail. The attempts by the Secretary of State to argue for the existence of an implied or residual power were firmly rejected.

Lord Lloyd Jones comments that “[a]s a matter of legal instinct, the proposition that the ability to exercise a lawful power to detain is a precondition to a power to grant bail seems entirely sound” and then goes on to remind us that a grant of bail is not a determination of the legality of detention.

These words are all very fine but as we will see the case is probably of historical rather than contemporary interest.

Retrospective legislation

Ultimately, the case can be read as highlighting the weakness of common law protections against infringements of liberty by the state.

At paragraph 23 of the judgment, Lord Lloyd Jones notes that the Secretary of State did not for the purpose of this particular appeal rely on section 61 of the Immigration Act 2016. The relevant parts of this section provide:

(3) A person may be released and remain on bail under paragraph 22 or 29 of Schedule 2 to the Immigration Act 1971 even if the person can no longer be detained under a provision of the Immigration Acts to which that paragraph applies, if the person is liable to detention under such a provision.

(4) The reference in subsection (3) to paragraph 22 or 29 of Schedule 2 to the Immigration Act 1971 includes that paragraph as applied by any other provision of the Immigration Acts.

(5) Subsections (3) and (4) are to be treated as always having had effect.

Take another look at subsection (5) if you missed it: yes, that is retrospective legislation. It seems quite surprising that, in a Supreme Court case raising this exact issue, the Secretary of State got away with disavowing the clear intent and meaning of this section as passed by Parliament at the instigation of the Secretary of State. I guess the issue had not been considered by the lower courts and therefore it was agreed that the issue should not be raised now.

This section was clearly put on the statute book by officials and ministers unconcerned at the violence they were doing to the British constitution and the precedent they were setting, all for the tawdry purpose of attempting to avoid claims for financial compensation by a handful of migrants. And then when the issue reached the Supreme Court they sidestepped it, presumably only to rely on it later in other cases before lower courts should any migrant detained in this way bring a case for damages for unlawful detention.

As Lord Lloyd Jones later says,

Nevertheless, the notion that the power to grant bail presupposes the existence and the ability to exercise a power to detain lawfully is not necessarily a principle of universal application. While the clearest possible words would be required to achieve a contrary result, Parliament could do so.

Are the words of section 61 sufficiently clear? At a glance, it would seem so. There are arguments that this conflicts with Article 5 of the European Convention on Human Rights and a declaration of incompatibility could be made, triggering something of a constitutional crisis akin to the prisoner voting saga.

Unless or until another case comes along (observe how unusual the facts were of this case) this will remain hypothetical.

New legislation

The system of bail considered by the Supreme Court in this case was repealed on 15 January 2018 and replaced with a new system set out in the Immigration Act 2016. We’ve covered this new system on the main blog (“New immigration bail and detention powers in force from today“) and in detail in our course on the Immigration Act 2016 (members only).

The new expanded detention powers include gems such as being able to detain a person on suspicion the person might in future breach bail conditions (see Schedule 10(10)(1)). Paragraph 1(5) of Schedule 10 authorises imposition of bail even where a person cannot be detained as does section 61 of the Immigration Act 2016, as we have already seen.

The Supreme Court’s re-statement of principles is therefore useful — and even inspiring — but the detail of what the Supreme Court says about the operation of the old legislation is only really of interest to the small number of migrants who had bail conditions imposed on them when they could not be removed. And their situation is not really resolved by the case anyway because of the failure to address the retrospective intent of section 61 of the Immigration Act 2016. That will need another case, and such cases are few and far between.