The Queen (on the application of Seth Kaitey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Nugee,Sir Stephen Richards |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1875 |
| Docket Number | Case No: C4/2020/1418 |
| Court | Court of Appeal (Civil Division) |
| Year | 2021 |
and
[2021] EWCA Civ 1875
Lord Justice Singh
Lord Justice Nugee
and
Sir Stephen Richards
Case No: C4/2020/1418
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mrs Justice Elisabeth Laing
[2020] EWHC 1861 (Admin); [2021] QB 285
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison QC, Alex Goodman and Matthew Fraser (instructed by Duncan Lewis) for the Appellant
Robin Tam QC and Emily Wilsdon (instructed by Treasury Solicitor) for the Respondent
Laura Dubinsky, Anthony Vaughan and Eleanor Mitchell (instructed by Allen & Overy) for the Intervener
Hearing dates: 16 & 17 November 2021
Approved Judgment
Introduction
The main issue in this appeal is whether the Secretary of State has the power to place a person on bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 (“the 2016 Act”) in circumstances where it would be unlawful to detain them. According to the evidence before the Court there may be more than 90,000 people who are currently on “immigration bail”, as it is described in the 2016 Act, some of whom (like this Appellant) cannot lawfully be detained.
The High Court (Elisabeth Laing J) decided that there is a power to bail a person in those circumstances. The Judge granted permission to appeal to this Court, recognising that this case raises an important point of statutory interpretation, which could affect a large number of people.
We have been assisted by detailed written and oral submissions by Ms Stephanie Harrison QC, who appeared with Mr Alex Goodman and Mr Matthew Fraser for the Appellant; Ms Laura Dubinsky, who appeared with Mr Anthony Vaughan and Ms Eleanor Mitchell for the Intervener, Bail for Immigration Detainees (“BID”); and Mr Robin Tam QC, who appeared with Ms Emily Wilsdon for the Respondent. I express the Court's gratitude to them all.
Factual Background
According to the Appellant, he first entered the United Kingdom (“UK”) clandestinely on 17 December 2006 and sought asylum. He claims to be a Guinean national.
On 16 January 2007 his first application for asylum was refused and on 5 March 2007 his appeal from that decision was dismissed by the First-tier Tribunal (“FTT”). On 28 September 2007 a reconsideration application was refused and his appeal rights became exhausted.
On 9 June 2009 the Appellant was convicted of possession of false documents at Glasgow Sheriff Court and was sentenced to 14 months' imprisonment. On 2 July 2009 the Respondent served him with a notice of liability to deportation and in response he made submissions under Articles 2 and 3 of the European Convention on Human Rights (“ECHR”).
On 10 August 2009 the Respondent submitted a request to the Guinean Embassy for an Emergency Travel Document (“ETD”) for the Appellant and on 5 November 2009 served him with a Reasons for Refusal Letter rejecting his ECHR claim.
On 25 November 2009 the Respondent served a Deportation Order on the Appellant.
On 4 February 2010 the FTT dismissed the Appellant's appeal against the refusal of his ECHR claims and the deportation order.
The Appellant had been given temporary admission in 2006, when he applied for asylum, but he was in custody from June 2009, initially serving his prison sentence and then in immigration detention pending deportation. On 21 January 2011, he was granted bail by the FTT. He was released on 25 January 2011. Since that date he has not been in detention.
The Respondent's records show that, on 25 January 2011, the Appellant was granted temporary admission but, in a Note filed with this Court after the hearing before us, she considers that, in fact, he was still on the bail granted by the FTT but that Form IS.96 (Tag & Track) was used to set out the conditions.
In accordance with the bail granted by the FTT, the Appellant was required to report to a Chief Immigration Officer on 3 March 2011 and did so. His bail conditions were varied. There were conditions as to residence, reporting and not working. There was also an electronic monitoring condition but, in July 2011, this was removed.
On 3 March 2011 the Respondent was informed by the Guinean Embassy that there was still no response from the authorities in Guinea to the ETD application and on 7 June 2013 the Embassy requested that the application be re-submitted.
Between 12 January 2012 and 29 November 2013 the Appellant's solicitors filed three further sets of submissions supporting his asylum claim and each of these was refused.
On 20 January 2014 the Guinean Embassy advised the Respondent that the ETD application had been referred to Conakry for “verification checks”. The Respondent's records show that almost monthly notes were made stating that she was awaiting the outcome of those checks until March 2016.
On 7 July 2014 the Appellant made further submissions under the legacy scheme and on 20 August 2015 made an application for leave to remain in the UK on the basis that he is a stateless person. On 29 February 2016 the Respondent refused this application.
On 10 May 2016 the Appellant completed a further bio-data form to assist the ETD application. On 27 May 2016 the Respondent made a fresh ETD application to Guinea and the Appellant attended a further interview at the Embassy. On 19 August 2016 the Guinean Embassy rejected this application and stated that he was not a Guinean national.
On 12 September 2016 a further application for leave to remain was made on the ground that the Appellant is stateless but was again refused.
On 16 September 2016 the Appellant was issued with a Notice of Restriction letter (Form DO4), which imposed restrictions under para. 2(5) of Sch. 3 to the Immigration Act 1971 (“the 1971 Act”) relating to reporting, residence and prohibiting employment. These were similar to bail conditions to which he had been subject previously. For convenience this is often called a “restriction order” although that phrase is not used in the 1971 Act.
On 22 November 2016 the Appellant completed a third bio-data form in the presence of an immigration officer and, on this occasion, questions were put to him regarding the Guinean Embassy's assertion that he was in fact a Ghanaian national.
On 15 February 2017 the Appellant made further submissions in support of his application that the deportation order should be revoked. On 26 May 2017 he responded to a “Section 120 Notice”; and on 23 June made further submissions on medical grounds.
The relevant provisions of Sch. 10 to the 2016 Act came into force on 15 January 2018. As will become apparent later, transitional provisions had the effect that the Appellant was moved from having been subject to a restriction order imposed by the Secretary of State under the 1971 Act to “immigration bail” under the 2016 Act, and subject to the same conditions as previously. These conditions were then varied on 5 June 2018: the Appellant was permitted to work but only in one of the occupations on the Shortage Occupation List.
On 6 December 2018 the Appellant made an application for leave to remain in the UK on protection grounds.
On 4 May 2020 the Appellant responded to a request from the Respondent to clarify aspects of the various applications he had made. On 27 May 2020 (one week before the High Court hearing), the Respondent refused the four sets of submissions made between 15 February 2017 and 6 December 2018 and this decision gave the Appellant a right of appeal to the FTT. That appeal was recently allowed in part, in a decision dated 25 June 2021, and, by a decision dated 16 July 2021, the Respondent was given permission to appeal to the Upper Tribunal: that appeal is still pending.
At the hearing before the High Court the Respondent took the position that the Appellant is a Ghanaian national, based on two pieces of information: notes in the Respondent's case files, recording that an official in the Guinean embassy had stated that Mr Kaitey's name and that of his school were Ghanaian; and evidence of the Appellant's connections through Facebook to people in Ghana, including close family members. The Appellant contends that this is unsurprising given that he has family who fled to Ghana at the same time that he fled Guinea.
The Appellant has not committed any offences since his release from detention in January 2011 and has complied with his reporting conditions.
On 28 October 2019 the Appellant's solicitors sent a pre-action protocol letter to the Respondent to challenge the lawfulness of the imposition of conditional bail on him.
On 3 December 2019 the Appellant filed his claim for judicial review in the High Court. On 23 January 2020, May J granted permission to bring that claim.
Following a remote hearing on 4 June 2020, Elisabeth Laing J handed down judgment on 13 July 2020, dismissing the claim for judicial review.
On 15 July 2020 the Appellant applied to the High Court for permission to appeal. On 17 July 2020 the Judge granted permission to appeal, not because she thought that it had a real prospect of success but on the ground that there was some other compelling reason, given that the case concerned a new statutory concept (“immigration bail”) and it was said that the outcome could affect around 90,000 people.
On 20 November 2020, BID were granted permission by Lewis LJ to make written and oral submissions in this Court, as they had been in the High Court.
Material legislation
The main provision which we must construe on this appeal is para. 1(2) of Sch. 10 to the 2016 Act:
“The Secretary of State may grant a...
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