9-E_SIAC Guidance Note 4: Detention and Bail Pending Deportation

(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)). Limitations to power of detention (domestic law) 2. (i) Detention must be for the purpose of securing a person pending deportation. (ii) Detention must be for a period of time reasonably necessary for that purpose. (iii) If it becomes clear that wont be able to deport within a reasonable period then the Secretary of State should not detain (even if reasonable period in (ii) has not yet expired). It is for the court to determine whether a deportation has reasonable prospects (ie not Wednesbury reasonableness) but the court should be slow to second guess the Executives assessment of diplomatic negotiations. (iv) The Secretary of State must exercise all reasonable expedition to ensure removal/deportation within a reasonable period of time. 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 persons removal that stood a reasonable prospect of surviving the scrutiny of a UK court. 4. These principles are derived from: R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 R(I) v SSHD [2002] EWCA Civ 888, paras 46-47 Youssef v Home Office [2004] EWHC 1884 (QB) 5. In determining whether deportation is going to be possible within a reasonable time the appellant cannot rely on delays caused solely by his own appeal: see (R(I) v SSHD [2002] EWCA (Civ) 888, which was relied upon by SIAC in its bail decision in Y, BB, U, Z and VV of 20 March 2009. 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). Tort of false imprisonment 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). 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 SIACs 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 persons 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 persons removal are in force or the power to give such directions is exercisable (para 30(1) Sched 2 1971 Act)

Relevance of national security and abscond risks 12. Abscond and risk of danger to the public have been found to be relevant to the lawfulness of detention (R(I) v SSHD [2002] EWCA Civ 888; R(A) v SSHD [2007] EWCA (Civ) 804). 13. However, SIAC has held that where the only reason for the individuals 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.

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. Application of article 5(4) ECHR to bail proceedings 15. SIAC has held that article 5(4) ECHR applies to bail proceedings. However, it has rejected the argument that article 5(4) requires the disclosure of closed material to the appellant. In doing so, it distinguished the ECtHR case of A and others 2009, in which the ECtHR found the failure to disclose sufficient closed material to enable effective instructions to be given to the Special Advocate to be incompatible with article 5(4). It did so on the basis that the detention in A and others was not under article 5(1)(f) whereas in SIAC bail hearings the appellants are detained in accordance with article 5(1)(f) and the detention is truly ancillary to the purpose of deportation. Furthermore, it recognised that in SIAC bail cases there is already a finding that the person poses a risk to NS in proceedings to which article 5(4) and article 6 do not apply and that finding can be relied upon and is not open to reconsideration in SIAC bail hearings. See SIAC bail decision in Y, BB, U, Z and VV of 20 March 2009. 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 Jurisdiction where appeal exhausted 17. SIAC continues to have bail jurisdiction in deportation cases where the domestic appeal has been exhausted. Section 3(2)(c) SIAC Act 1997 would apply. Where a deportation order is signed and the appeal is exhausted the person is detained under para 2(3) of Schedule 3 to the 1971 Act and para 2(4A) of that Schedule applies. (In contrast, where an appeal against a notice of intention to deport is outstanding, the person is detained under para 2(2) of Schedule 3 to the 1971 Act and para 3 of that Schedule applies). In consequence paras 22 to 25 Schedule 2 to the 1971 Act (not paras 29 to 33) apply where the appeal is exhausted, as modified by the SIAC Act in SIAC cases. [This was accepted by SIAC in relation to Qatada in Feb 2009.] 18. Breach of bail conditions An individual who is bailed can be arrested without warrant by a constable or an immigration officer where that officer has reasonable grounds for believing that the person is likely to break, is breaking or has broken any bail conditions (paras 24(1) and 33(1) Sched 2 1971 Act). SIAC held (in Abu Qatada, 2 December 2008) that likely to break requires there to be substantial grounds for believing that bail will be breached, which is a lower threshold than more likely than not (ie the threshold is lower than balance of probabilities); 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 Qatadas 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).

19. Points to note: 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 its 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 individuals 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. 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 Courts 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 its 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 persons 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.

Applications for bail variation: procedure 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 a. TSol is first alerted to a bail variation request when it receives a completed standard bail variation application form from the legal representatives of an individual subject to SIAC bail conditions. b. TSol must then obtain the instructions of the Secretary of State as to whether he has any objections to the request. c. TSol will, therefore, send the request by email, along with any thoughts they may have, to the following parties: i. SCD ii. SyS - the request should go to LAC2 as well as the specific caseholder for that individuals case d. It may be that further information relating to the request is required in which case TSol will revert to the legal representatives asking for this. e. Once SCD and SyS have sufficient information relating to the request, they will both carry out various checks internally and with relevant agencies. Both SCD and SyS need to respond to TSol stating (i) whether they have any objections to the request, and (ii) any conditions that might apply if they do not object or if SIAC grants the request despite the Secretary of States objection (see below). f. Once both SCD and SyS have given their instructions, TSol should draft a response in the text box on page 2 of the standard bail variation request form. This should be sent to SCD for approval. Only SCD are able give final 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 States position to SIAC and the individuals 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 individuals 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:
For the avoidance of doubt, and in ALL cases :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.* 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. The SSHD reserves the right to request more information in support of the application if appropriate. The SSHD is willing to consider requests in principle without supporting documentation but will object if the supporting documentation is not forthcoming for the actual variation. You should inform the SSHD If you wish to cancel this variation request whether or not the appointment is to be rescheduled.

ii) iii) iv)

v)

* 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