Kaitey, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1875 (10 December 2021)

Kaitey, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1875 (10 December 2021)

The Secretary of State has the power to grant immigration bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 even where it would be unlawful to detain the person, as 'liable to detention' refers to the existence of a legal power to detain, not its lawful exercise. The legislative history, statutory language, and transitional provisions confirm Parliament's intention to allow immigration bail in such circumstances. The regime does not inherently violate Article 5 ECHR, as the Human Rights Act provides remedies for any breach of Convention rights in individual cases.

Citation
[2021] EWCA Civ 1875
Parties
Claimant/appellant: Seth Kaitey; Defendant/respondent: Secretary of State for the Home Department; Intervener: Bail for Immigration Detainees
Jurisdiction
England and Wales
Judgment Date
10 December 2021
Procedural Posture
Judicial Review Appeal / Court of Appeal (civil Division) on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Immigration Bail, Statutory Interpretation, Deprivation of Liberty, Article 5 ECHR, Transitional Provisions, Principle of Legality
Immigration Law Administrative Law Human Rights Immigration Bail Statutory Interpretation Deprivation of Liberty Article 5 ECHR Transitional Provisions +1 more

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Parties

Seth Kaitey

Claimant/appellant

Secretary of State for the Home Department

Defendant/respondent

Bail for Immigration Detainees

Intervener

Procedural Posture

Judicial Review Appeal / Court of Appeal (civil Division) on Appeal From High Court

Legal Issues

  1. 1 Whether the Secretary of State has power to grant immigration bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 when detention would be unlawful
  2. 2 Interpretation of 'liable to detention' in the context of immigration bail
  3. 3 Compatibility of immigration bail regime with Article 5 ECHR

Ratio Decidendi

The Secretary of State has the power to grant immigration bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 even where it would be unlawful to detain the person, as 'liable to detention' refers to the existence of a legal power to detain, not its lawful exercise. The legislative history, statutory language, and transitional provisions confirm Parliament's intention to allow immigration bail in such circumstances. The regime does not inherently violate Article 5 ECHR, as the Human Rights Act provides remedies for any breach of Convention rights in individual cases.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed; the High Court's decision is upheld.