B (Algeria) (Respondent) v Secretary of State for the Home Department (Appellant)

Hand-down Date:February 08, 2018
Cite as:[2018] UKSC 5
 
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THE COURT ORDERED that no one shall publish or reveal the name or address of the Respondent who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Respondent or any member of his family in connection with these proceedings.

Hilary Term [2018] UKSC 5 On appeal from: [2015] EWCA Civ 445

JUDGMENT

B (Algeria) (Respondent) v Secretary of State for the Home Department (Appellant) before

Lady Hale, President Lord Mance, Deputy President Lord Hughes

Lord Hodge Lord Lloyd-Jones JUDGMENT GIVEN ON 8 February 2018 Heard on 14 and 15 November 2017 Appellant Respondent Robin Tam QC

Stephanie Harrison QC Anthony Vaughan (Instructed by Birnberg Peirce) Belinda McRae

(Instructed by The Government Legal

Department)

Intervener (Bail for Immigration Detainees (BID))

Michael Fordham QC Laura Dubinsky (Instructed by Allen & Overy LLP) LORD LLOYD-JONES: (with whom Lady Hale, Lord Mance, Lord Hughes and Lord Hodge agree)

  1. The question raised by this appeal is whether there exists a power under the Immigration Act 1971 ("the 1971 Act") to grant immigration bail to a person who can no longer be lawfully detained.

    Factual Background

  2. B has a long and complex immigration history which it is necessary to refer to in some detail. He has been in the United Kingdom since 1993. Between 5 February 2002 and 11 March 2005, he was detained under section 21 of the Antiterrorism, Crime and Security Act 2001. He appealed to the Special Immigration Appeals Commission ("SIAC") against that decision using a false identity. The relevant provisions of the 2001 Act were repealed by the Prevention of Terrorism Act 2005 ("the 2005 Act") following the decision of the House of Lords in A and others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68. B was then released from detention on 11 March 2005, and made subject to a control order under the 2005 Act. He was admitted to the Royal Free Hospital on the 12 March 2005 as a voluntary psychiatric patient where he remained, save for one night, until 11 August 2005.

  3. On 11 August 2005 B was notified, in accordance with regulations under section 105 of the Nationality Immigration and Asylum Act 2002, of the Secretary of State's decision to make a deportation order against him on national security grounds, under sections 3(5) and 5(1) of the 1971 Act. B was arrested and detained under immigration powers contained in paragraph 2(2) of Schedule 3 to the 1971 Act "pending the making of the deportation order". He was detained at HMP Woodhill and, the following day, transferred to HMP Long Lartin. On 17 August 2005, B appealed to SIAC against that decision, once again using the same false identity. B's grounds of appeal contended, inter alia, that his removal to Algeria would be in breach of the United Kingdom's obligations under the UN Refugee Convention and unlawful as incompatible with his rights under article 3 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR").

  4. The Secretary of State has never disputed that, if deported to Algeria, B would be at real risk of treatment incompatible with article 3 ECHR and that only with specific individual assurances from the Algerian government could he be lawfully and safely removed to Algeria. On 11 May 2006, Her Majesty's Government informed the Algerian Government that it proposed to deport B and

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    requested certain information about him. On 16 May 2006, specific assurances as to the treatment of B were sought from Algeria. On 10 July 2006, the Algerian authorities confirmed that the details of his identity given by B were those of an individual present in Algeria.

  5. On 17 July 2006, SIAC heard the national security case in B's appeal against the Secretary of State's decision to make a deportation order.

  6. On 12 January 2007, pursuant to rule 39(1) of the Special Immigration Appeals Commission (Procedure) Rules 2003, SIAC directed B to provide specified particulars of his true identity and to consent to provide a non-invasive sample for the purposes of DNA testing. B consented to provide a DNA sample but refused to provide the particulars of his true identity. On 19 July 2007, SIAC ordered B to provide details of his true identity. A penal notice was attached to the order.

  7. On 30 July 2008, SIAC gave judgment in the national security case against B, holding that the Secretary of State's case on the risk to national security had been made out. SIAC concluded that, notwithstanding his mental health difficulties, B had played a leading role in facilitating communications for Algerian terrorists, as well as being responsible for the procurement of false documentation and high technology equipment. The hearing of the case on safety on return did not take place at that time because of the unresolved question of B's true identity.

  8. On 18 August 2009, the Secretary of State applied to SIAC for an order that B be committed to prison for contempt for disobeying the order of 19 July 2007. Following an adjournment in the hope of resolving the issue of B's identity, the committal application was eventually heard on 11 October 2010. In its judgment delivered on 26 November 2010 SIAC held that B had deliberately and contumeliously disobeyed its order and, taking into account all the circumstances including that B's mental illness may have reinforced his decision not to comply with SIAC's order, imposed a prison sentence of four months. The operation of the order was suspended until the final determination of any appeal. On 21 July 2011, the Court of Appeal by a majority dismissed his appeal (B (Algeria) v Secretary of State for the Home Department [2011] EWCA Civ 828). B appealed to the Supreme Court which on 30 January 2013 dismissed the appeal (B (Algeria) v Secretary of State for the Home Department [2013] UKSC 4; [2013] 1 WLR 435). B then served his sentence of 4 months' imprisonment in HMP Belmarsh and was released on 5 April 2013.

  9. On 11 April 2006, SIAC had decided in principle that B could be granted bail. However, save for one night, throughout the period from 11 March 2005 B remained in either prison or hospital until his discharge from hospital to bail

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    accommodation on 18 January 2011. B was voluntarily readmitted to hospital in February 2011 and on further occasions thereafter. Following his release from prison after serving his sentence for contempt, two sets of bail conditions were set by SIAC to run in parallel depending on whether B was an in-patient at a psychiatric hospital or residing at his bail accommodation.

  10. On 23 January 2014, B applied to vary his bail conditions which, he maintained, constituted an unlawful deprivation of liberty. At a hearing on 28 and 29 January 2014 SIAC considered the application of the Hardial Singh principles (R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704) to the circumstances of B's case, including the prospect of B's removal to Algeria. In its judgment of 13 February 2014, SIAC found that in the absence of a change of mind by B "there is no reasonable prospect of removing [B] to Algeria and thus the ordinary legal basis for justified detention of B under the Immigration Acts has fallen away". Following this ruling, the Secretary of State did not authorise the further detention of B, although B's advisers only became aware of this on or about

    6 June 2014. In its judgment of 13 February 2014 SIAC also held that the conditions of bail did not constitute a deprivation of liberty. However, it subsequently directed a review of B's bail conditions, which were relaxed by an order dated 16 May 2014.

  11. On 14 May 2014 the Secretary of State applied under rules 11B and 40 of the Special Immigration Appeals Commission (Procedure) Rules 2003 to strike out B's appeal against the notice of decision to deport him, on the grounds of his continuing refusal to comply with the order of 19 July 2007. On 1 July 2014, in the light of B's continuing contempt of court, SIAC struck out B's appeal.

  12. B maintained that, following SIAC's findings on 13 February 2014, his detention could no longer lawfully be authorised as it would be incompatible with Hardial Singh principles. He contended that if that were so, and he could not lawfully be detained, SIAC no longer had jurisdiction to grant bail to B or to impose bail conditions. In its judgment of 1 July 2014, SIAC rejected these submissions, concluding that it continued to have jurisdiction to impose bail conditions on B.

  13. B then applied for permission to apply for judicial review of SIAC's decision of 1 July 2014 on its bail jurisdiction, there being no right of appeal against that decision. Irwin J, sitting as a High Court Judge, heard that application by agreement between B and the Secretary of State, and on 14 August 2014 he granted B permission to apply for judicial review of that decision, dismissed the application for judicial review, and granted permission to appeal to the Court of Appeal.

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  14. B appealed to the Court of Appeal which on 6 May 2015 gave judgment allowing both appeals (B (Algeria) v Secretary of State for the Home Department (No 2) [2015] EWCA Civ 445; [2016] QB 789).

    (1) The Court of Appeal allowed B's appeal in relation to SIAC's bail jurisdiction on the ground that SIAC had no jurisdiction to impose bail conditions on B if his detention would be unlawful.

    (2) The Court of Appeal also allowed B's appeal against the strike out of B's SIAC appeal and remitted the matter to SIAC.

  15. On 15 September 2016 SIAC refused the application to strike out B's appeal against the decision to make a deportation order against him. The Secretary of State then indicated that she no longer opposed B's appeal. Accordingly, in a judgment dated 12 December 2016 SIAC confirmed its decision to allow B's appeal against the notice of intention to deport him. The Secretary of State did not seek permission to appeal. As a result of this ruling allowing the substantive deportation appeal,...

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