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9-E UKBA-SIAC Guidance Note 4 Detention Bail

9-E UKBA-SIAC Guidance Note 4 Detention Bail

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Published by: Apollyon on May 12, 2011
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 1
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 deportationaction (para 2 of Schedule 3 to the Immigration Act 1971 (the 1971 Act). A person can bearrested without warrant when the notice of intention to deport has been made and isready 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 won‟t be able to deport within
a reasonable period then theSecretary of State should not detain (even if reasonable period in (ii) has not yetexpired). It is for the court to determine whether a deportation has reasonableprospects (ie not Wednesbury reasonableness) but the court should be slow to
second guess the Executive‟s assessment of diplomatic negotiations.
(iv)
 
The Secretary of State must exercise all reasonable expedition to ensureremoval/deportation within a reasonable period of time.3.
 
Faced with a challenge to the legality of detention, a court will ask itself whether thestrategy 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.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 theappellant 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 VVof 20 March 2009.6.
 
Regular detention reviews must be carried out in accordance with the Detention CentreRules 2001 (made under the Immigration Act 1971)
.
The Court of Appeal has acceptedthat the absence of those reviews does not itself render the detention unlawful (beingappealed to the House of Lords). That is because paragraph 2 of Schedule 3 to theImmigration Act 1971 does not specify that compliance with those rules/guidance is anecessary condition of lawful detention. However, a breach of the rules or failure tofollow the procedures in the guidance could attract other remedies in public law, such as adeclaration of non-compliance by the SSHD (SK (Zimbabwe) v SSHD [2008] EWCA Civ1204).
Tort of false imprisonment
7.
 
Where a claim is brought alleging the tort of false imprisonment the claimant must proveimprisonment and then the Secretary of State must prove justification: Youssef v HomeOffice [2004] EWHC 1884 (QB).
Legal basis of detention (ECHR)
 
 2
8.
 
Article 5(1)(f) ECHR permits detention of a person against whom action is being takenwith a view to deportation. Under article 5(1)(f) detention is only justified for as long asdeportation proceedings are in progress and prosecuted with due diligence (see SIAC baildecision Y, BB, U, Z and VV of 20 March 2009). And detention must be determined by aprocedure prescribed by law (to guarantee against arbitrariness); article 5(4) ECHR affordscertain safeguards to proceedings in which liberty is at stake (see further below regardingbail).
Place of detention
9.
 
This will depend on the risk posed by the individual. Most often SIAC appellants aredetained in a Category A prison, although there would be nothing to prevent their beingdetained 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 thegrounds of national security (b) where the Secretary of State has certified that thedetention is necessary in the interests of national security or (c) who have been refusedleave to enter on the ground that exclusion is in the interests of national security (s3 SIACAct 1997). (NB
SIAC‟s bail jurisdi
ction 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 appealhas not been brought and Part 2 in cases where an appeal has been brought (see paras2(4A) and 3 of Schedule 3 to the 1971 Act). Schedule 2 applies with the modifications setout in Schedule 3 to the SIAC Act 1997:
 
SIAC can grant bail where the appellant enters into a recognisance conditioned for hisappearance 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 (para
s 22 and29 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)
Relevance of national security and abscond risks
12.
 
Abscond and risk of danger to the public have been found to be relevant to the lawfulnessof 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 individual‟s detention is the
outstanding appeal brought by the appellant (eg the national security and safety on returncases are fully in place) the courts need not take into account the abscond and nationalsecurity risk when determining whether or not a person should be granted bail becausethe period in which the appeal is being brought is to be ignored in determining thelawfulness of detention so the NS/abscond risks become irrelevant. The only requirementis that the appellant is detained pending deportation and the SSHD is exercising allreasonable expedition. This is supported by Strasbourg jurisprudence (Chahal, paras 112and 113). Nonetheless, SIAC has taken the view that this would be unacceptable given thelength of the appeals process and will therefore take both the national security andabscond risks into account when determining whether an individual should be grantedbail. See bail decision in Y, BB, U, Z and VV of 20 March 2009, paras 9 and 12.
 
 3
Bail conditions
14.
 
Whilst the SIAC Act 1997 is silent on the matter, SIAC imposes conditions on bail that arenecessary for the purposes of protecting national security/preventing abscond. Its powerto do so is inferred from the fact that bail can only be granted under s3 SIAC Act 1997 innational security cases and it must have been intended that any bail granted to personsconsidered to be a threat to national security would be able to address those concernsthrough bail conditions. Otherwise, bail would almost certainly never be granted innational 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 rejectedthe argument that article 5(4) requires the disclosure of closed material to the appellant. Indoing so, it distinguished the ECtHR case of A and others 2009, in which the ECtHR foundthe failure to disclose sufficient closed material to enable effective instructions to be givento the Special Advocate to be incompatible with article 5(4). It did so on the basis that thedetention in A and others was not under article 5(1)(f) whereas in SIAC bail hearings theappellants are detained in accordance with article 5(1)(f) and the detention is trulyancillary to the purpose of deportation. Furthermore, it recognised that in SIAC bail casesthere is already a finding that the person poses a risk to NS in proceedings to which article5(4) and article 6 do not apply and that finding can be relied upon and is not open toreconsideration in SIAC bail hearings. See SIAC bail decision in Y, BB, U, Z and VV of 20March 2009.16.
 
This bail decision is at the time of writing subject to a judicial review (U and XC v SIAC2009). A preliminary issue to be resolved is whether the High Court has any jurisdictionto hear a judicial review against the decision of a superior court of record; the Secretary ofState will argue it does not. It is also anticipated that further arguments will be run beforeSIAC in this regard in reliance on the House of Lords control order judgment SSHD v AFand 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 appealhas been exhausted. Section 3(2)(c) SIAC Act 1997 would apply. Where a deportationorder is signed and the appeal is exhausted the person is detained under para 2(3) ofSchedule 3 to the 1971 Act and para 2(4A) of that Schedule applies. (In contrast, where anappeal against a notice of intention to deport is outstanding, the person is detained underpara 2(2) of Schedule 3 to the 1971 Act and para 3 of that Schedule applies). Inconsequence paras 22 to 25 Schedule 2 to the 1971 Act (not paras 29 to 33) apply where theappeal is exhausted, as modified by the SIAC Act in SIAC cases. [This was accepted bySIAC 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 animmigration officer where that officer has reasonable grounds for believing that theperson is likely to break, is breaking or has broken any bail conditions (paras 24(1) and33(1) Sched 2 1971 Act). SIAC held (in Abu Qatada, 2 December
2008) that „likely tobreak‟ 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 islower than balance of probabilities);
 
A constable or immigration officer can enter premises for the purposes of effecting thatarrest, using reasonable force, where a warrant to do so is granted by a justice of thepeace (para 17(2) Sched 2 1971 Act as applied by paras 24 and 33(1) of that Sched);

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