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(i) Detention
1. The Secretary of State has a power to detain a person who is the subject of deportation
action (para 2 of Schedule 3 to the Immigration Act 1971 (the 1971 Act). A person can be
arrested without warrant when the notice of intention to deport has been made and is
ready to be served (see para 2(4)).
3. Faced with a challenge to the legality of detention, a court will ask itself whether the
strategy or proposals being considered by HMG offer a realistic chance of achieving,
within a reasonable period of time, a case for the person‟s removal that stood a reasonable
prospect of surviving the scrutiny of a UK court.
6. Regular detention reviews must be carried out in accordance with the Detention Centre
Rules 2001 (made under the Immigration Act 1971). The Court of Appeal has accepted
that the absence of those reviews does not itself render the detention unlawful (being
appealed to the House of Lords). That is because paragraph 2 of Schedule 3 to the
Immigration Act 1971 does not specify that compliance with those rules/guidance is a
necessary condition of lawful detention. However, a breach of the rules or failure to
follow the procedures in the guidance could attract other remedies in public law, such as a
declaration of non-compliance by the SSHD (SK (Zimbabwe) v SSHD [2008] EWCA Civ
1204).
7. Where a claim is brought alleging the tort of false imprisonment the claimant must prove
imprisonment and then the Secretary of State must prove justification: Youssef v Home
Office [2004] EWHC 1884 (QB).
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Legal basis of detention (ECHR)
8. Article 5(1)(f) ECHR permits detention of a person against whom action is being taken
with a view to deportation. Under article 5(1)(f) detention is only justified for as long as
deportation proceedings are in progress and prosecuted with due diligence (see SIAC bail
decision Y, BB, U, Z and VV of 20 March 2009). And detention must be determined by a
procedure prescribed by law (to guarantee against arbitrariness); article 5(4) ECHR affords
certain safeguards to proceedings in which liberty is at stake (see further below regarding
bail).
Place of detention
9. This will depend on the risk posed by the individual. Most often SIAC appellants are
detained in a Category A prison, although there would be nothing to prevent their being
detained in an immigration removal centre if this was considered appropriate.
(ii) Bail
10. SIAC has the power to grant bail to individuals (a) who are facing deportation on the
grounds of national security (b) where the Secretary of State has certified that the
detention is necessary in the interests of national security or (c) who have been refused
leave to enter on the ground that exclusion is in the interests of national security (s3 SIAC
Act 1997). (NB SIAC‟s bail jurisdiction will not necessarily cover all cases in which it has
jurisdiction over the substantive appeal.)
11. Schedule 2 to the 1971 Act applies to that bail - Part 1 of that Schedule where an appeal
has not been brought and Part 2 in cases where an appeal has been brought (see paras
2(4A) and 3 of Schedule 3 to the 1971 Act). Schedule 2 applies with the modifications set
out in Schedule 3 to the SIAC Act 1997:
SIAC can grant bail where the appellant enters into a recognisance conditioned for his
appearance before SIAC on a later date and conditions can be attached which are
likely to result in the person‟s appearance before SIAC at the later date (paras 22 and
29 Sched 2 as modified by Sched 3 SIAC Act 1997)
But this power cannot be exercised without the consent of the Secretary of State if
directions for the person‟s removal are in force or the power to give such directions is
exercisable (para 30(1) Sched 2 1971 Act)
13. However, SIAC has held that where the only reason for the individual‟s detention is the
outstanding appeal brought by the appellant (eg the national security and safety on return
cases are fully in place) the courts need not take into account the abscond and national
security risk when determining whether or not a person should be granted bail because
the period in which the appeal is being brought is to be ignored in determining the
lawfulness of detention so the NS/abscond risks become irrelevant. The only requirement
is that the appellant is detained pending deportation and the SSHD is exercising all
reasonable expedition. This is supported by Strasbourg jurisprudence (Chahal, paras 112
and 113). Nonetheless, SIAC has taken the view that this would be unacceptable given the
length of the appeals process and will therefore take both the national security and
abscond risks into account when determining whether an individual should be granted
bail. See bail decision in Y, BB, U, Z and VV of 20 March 2009, paras 9 and 12.
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Bail conditions
14. Whilst the SIAC Act 1997 is silent on the matter, SIAC imposes conditions on bail that are
necessary for the purposes of protecting national security/preventing abscond. Its power
to do so is inferred from the fact that bail can only be granted under s3 SIAC Act 1997 in
national security cases and it must have been intended that any bail granted to persons
considered to be a threat to national security would be able to address those concerns
through bail conditions. Otherwise, bail would almost certainly never be granted in
national security cases.
16. This bail decision is at the time of writing subject to a judicial review (U and XC v SIAC
2009). A preliminary issue to be resolved is whether the High Court has any jurisdiction
to hear a judicial review against the decision of a superior court of record; the Secretary of
State will argue it does not. It is also anticipated that further arguments will be run before
SIAC in this regard in reliance on the House of Lords control order judgment SSHD v AF
and another and another [2009] UKHL 28.
See also SIAC Guidance Note 10: Fair Hearing: ECHR considerations
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A constable or immigration officer can enter premises for the purposes of effecting that
arrest, using reasonable force, where a warrant to do so is granted by a justice of the
peace (para 17(2) Sched 2 1971 Act as applied by paras 24 and 33(1) of that Sched);
Such a person must be brought before SIAC within 24 hours of his arrest (paras 24(2)
and 33(2) Sched 2 1971 Act as modified by Sched 3 SIAC Act 1997). SIAC has
indicated (users‟ group meeting) that it is content for the individual to be brought
before SIAC on the next working day. However, the individual would have a prima
facie case of unlawful detention where that is more than 24 hours after the person is
initially detained. In Qatada‟s case SIAC offered a telephone hearing over the
weekend, which was not taken up on that occasion (2 December 2008). The remedy
would be to amend the SIAC Act 1997 so that the person is to be brought before SIAC
on the next working day rather than 24 hours after arrest;
Where the risks associated with arresting the person and subsequently having them
released again by SIAC are considered to be too great, it is possible to seek a closed
hearing without notice to the appellant (but with special advocates present) and ask
for a preliminary indication from SIAC which will enable the SSHD to determine
whether to risk proceeding with an arrest (Qatada, 2 December 2008). However, SIAC
has made clear that this should be used sparingly.
Experience suggests that it may be simplest to arrest the person and bring them before
SIAC rather than seek a bail revocation hearing on limited notice to the individuals.
That is because a subsequent adjournment of the bail revocation hearing could
increase the abscond risk and the Secretary of State may then be criticised for his
subsequent exercise of the arrest powers: see unlawful detention claims arising out of
bail hearings of Y, BB, U, Z and VV in February 2009.
SIAC can order that the person be detained or release him on bail (with the same or
new bail conditions) (paras 24(3) and 33(3) Sched 2 1971 Act as modified by Sched 3
SIAC Act 1997).
SIAC has tended to grant bail to individuals who have been in detention for some time
and whose appeals are likely to continue for some time where there is no new national
security material relating to those persons. SIAC has been minded to relax bail
conditions to reward compliance. SSHD has objected to this approach.
Generally speaking, the police should use the para 17 Sched 2 1971 Act power to enter
premises with a warrant if they are seeking to arrest a person for breaching SIAC bail
conditions. The police may have other powers to enter premises and it may be that
they would be appropriate in certain cases such as where it‟s necessary to enter the
premises immediately in order to save life or limb. However, care should be taken to
avoid any abuse of power. Entry to arrest for breach of bail is expressly provided for
in para 17.
Bail orders often give IOs a power to enter the individual‟s premises to verify his
presence and compliance with conditions. It would be an abuse of that power to use it
to enter the premises for the purposes of arresting the person; the power in para 17
Sched 2 1971 Act applies for that purpose. However, if the IO is already on the
premises for the purpose of verifying compliance and whilst there decides to arrest he
would not need to seek a warrant to re-enter the premises for that purpose.
It is desirable to arrest a person within a reasonably short period after the breach.
However, earlier breaches which were not acted upon can be relied upon subsequently
when pursuing a separate breach.
Bail conditions do not interfere with the right of the police and agencies to undertake
surveillance of the individual.
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The Bail Act 1976 is not of direct application in immigration cases but the courts
sometimes draw analogies with it in immigration cases.
There is no appeal right in respect of bail decisions. And the Secretary of State is
currently arguing that the High Court‟s non-statutory power of judicial review does
not extend to superior courts of record (such as SIAC) and therefore to SIAC bail
decisions.
Whilst a person on strict SIAC bail conditions would need to seek a variation before
they leave the UK voluntarily it‟s not clear that there is any reason (other than
immediate threat to the UK and therefore arrest) that would prevent SIAC from
granting such a variation and enabling the SSHD to control that person‟s departure
from the UK.
The provision of housing could fall within the provision of services/facilities under
the Race Discrimination Act 1976 notwithstanding an exemption under s19D of that
Act.
It is not clear whether a duty of care is owed by the Secretary of State in respect of
accommodation. The Home Office would likely resist such an argument.
20. There is a draft standard bail variation application form which is used to make requests of
SIAC to temporarily vary bail conditions of an individual subject to SIAC bail for a
particular purpose. The Secretary of State should have the opportunity to make
submissions on the request and, ultimately, set out whether he objects to the variation,
does not object, or does not object provided that certain conditions are met.
21. SIAC has determined that where the variation is for medical or legal reasons 2 days notice
of the variation must be given by the individual to the Secretary of State. Where the
variation is for other reasons 5 days notice must be given. However, in all cases, SSHD
must be informed as soon as practicable after the bailee becomes aware of the need for the
variation.
22. Process
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instructions to TSol although the wording of any response can be discussed
between TSol, SyS, SCD and, where appropriate, other agencies. TSol will then
relay the Secretary of State‟s position to SIAC and the individual‟s legal
representatives by way of the response box.
g. SIAC then proceeds to make a decision on the request bearing in mind the
position of the Secretary of State. Once SIAC has responded, this response
must be sent to SCD and SyS immediately. SCD will alert the relevant
operations team and the monitoring company (plus police and local
immigration team/ATLU in certain circumstances) so that they are aware of
the individual‟s whereabouts and if he will be outside his boundary or curfew
times at any particular time or out of his residence.
23. The standard bail variation form sets out the conditions which, where relevant, apply to
all bail variation requests which are granted. These are as follows:
i) Any leaving of the boundary (or residence if after curfew hours) or time outside the
usual curfew time is for the SOLE purpose of attending the appointment (that is the
subject of the variation) and the appellant will travel directly there and back to the
residence, telephoning SERCO upon departure and return to the residence.*
ii) Unless SIAC has authorised the variation, the appellant will adhere to his current bail
conditions, even if the SSHD has no objections to the proposed variation.
iii) The SSHD reserves the right to request more information in support of the application if
appropriate.
v) You should inform the SSHD If you wish to cancel this variation request whether or not
the appointment is to be rescheduled.
* Note a SIAC reference to “SERCO” refers to either SERCO or G4S (for the purpose of bailees
in England and Wales) who split the electronic monitoring of cases geographically.
24. The FCO and other “non-operational” agencies/departments are usually not involved in
bail variation requests. The request is also not as a matter of course sent to legal advisers
of the Home Office or SyS. If the request involves a legal issue which needs to be referred,
then LAB and SyS Legal Advisers may be contacted either by TSol or SCD/SyS.
Key Materials:
TSol letter to SIAC with generic arguments relating to bail, 31 July 2008
September 2009