The Secretary of State for the Home Department v Lucas, R (On the Application Of)

These appeals concern the lawfulness of the re-detention of foreign criminals, who are the subject of a deportation order and on immigration bail, for the purposes of their attending an interview with Nigerian officials at a detention centre to secure emergency travel documentation and thus facilitate their removal.

In each of the appeals, the individual party (Mr Lucas and Mr Aboro) is a Nigerian national who is the subject of a deportation order as a foreign criminal; and, as such, has at all material times been liable to be detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”). Each was in fact detained, but released on bail at least initially granted by the First-tier Tribunal (“FtT”). Each substantively complied with all conditions imposed upon him. However, each was eventually arrested and re-detained by the Secretary of State so that he could be interviewed at a detention centre by the Nigerian Immigration Service (“NIS”), for the purposes of obtaining an emergency travel document (“ETD”) to facilitate his removal to Nigeria. After some time, each was again released. They each now claim that the period of detention following his arrest for the purposes of an NIS interview until his release was unlawful.

In the case of Mr Lucas, on 27 July 2016 Collins J held that the period of detention (three days) was unlawful because, at the time of his arrest, Mr Lucas was still subject to the immigration bail ordered by the FtT and the Secretary of State had no power to vary or otherwise interfere with that bail or its terms as she purported to do. However, Collins J found that, in the circumstances, had Mr Lucas been produced to the FtT on a bail application as he should have been, then no FtT judge would have granted him bail. He therefore awarded Mr Lucas only nominal damages. He granted permission to appeal to both parties.

In the case of Mr Aboro, he was arrested for the purposes of an NIS interview on 27 July 2016. On 26 September 2016 (the day before it was proposed to remove him), Jay J refused his application for permission to proceed with the claim and all other claims, declaring them to be totally without merit and that the Secretary of State was at liberty to remove him the following day. In the event, because the expected ETD from the Nigerian authorities did not materialise, Mr Aboro was not removed then; and he was eventually granted bail by the FtT on 27 October 2016.

By my Order of 17 August 2017, I refused all his grounds of appeal save for one, namely that Mr Aboro’s period of detention from 27 July 2016 was unlawful because he was still on immigration bail ordered by the FtT and the Secretary of State had no power to vary or otherwise interfere with that bail or its terms as she purported to do, i.e. in substance, the same ground relied upon by Mr Lucas. In respect of that ground, I adjourned it into open court on a rolled-up basis to be heard with Mr Lucas’s appeal.

Thus, the two matters are before us. For the sake of completeness I should say that there are other grounds of appeal upon which the parties rely or seek to rely, notably Mr Lucas and Mr Aboro submit that their detention was unlawful in any event because, contrary to the well-known principles in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (“Hardial Singh”), it was for the purpose of being included in a documentation interview scheme which required the applicants to be detained.

Before us, Sonali Naik QC and Greg Ó Ceallaigh of Counsel appeared for Mr Lucas and Mr Aboro, and Sarabjit Singh QC (in respect of Mr Lucas’s appeal) and Julie Anderson of Counsel (in respect of Mr Aboro’s appeal) for the Secretary of State.

References in this judgment to “Schedule 2” and “Schedule 3” are to Schedule 2 and Schedule 3 of the 1971 Act respectively, as they stood at all material times for the purposes of these appeals, i.e. before 15 January 2018, when they were extensively amended by Schedule 10(2) to the Immigration Act 2016.

Paragraph 2 of Schedule 3 provides for “Detention or control pending deportation”. At all material times, paragraph 2(3) read as follows:

Paragraph 4 and 4A provided (so far as material to these appeals) that:

Paragraphs 17, 22 and 24 of Schedule 2 (at the material time, so far as material to these appeals and, in the light of paragraph 2(4) and (4A) of Schedule 3, replacing references to “paragraph 16” with “paragraph 2(3) of Schedule 3”), provided as follows:

For the sake of completeness, I should refer to two other paragraphs of the schedules to the 1971 Act, which make a brief appearance in these appeals.

Paragraph 2(5) and (6) of Schedule 3 provides:

Paragraph 16 provides

Mr Lucas’s immigration history is long and tortuous, with a prodigious number of representations, decisions, appeals and judicial reviews made on his behalf. Indeed, as recently as 17 July 2018, I refused him permission to appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse him permission to proceed with the judicial review of the Secretary of State’s decision of 27 January 2016 to refuse to accept his further human rights representations of 16 April and 6 July 2015 as amounting to a fresh claim, on the basis that, since those representations, he had made yet further submissions that had been rejected as a fresh claim without challenge, and yet further submissions still which had not yet been considered by the Secretary of State.

However, it is unnecessary to consider this history in detail for the purposes of this appeal. The relevant parts of it are as follows.

Mr Lucas arrived in the United Kingdom from Barcelona on 21 November 2010 as an EU citizen using documents showing him as a Hungarian national named Chidiere Ekechukwu. Those documents were false.

He was refused leave to enter, and a judicial review of that refusal was refused as totally without merit: but his removal was deferred on the basis of his assertion that he had a British partner. That too was false, and his claim to that effect was refused by the Secretary of State and certified as clearly unfounded.

As a result of his use of false documents on entry to the UK, Mr Lucas was convicted of two offences of possessing false identity documents with intent contrary to section 25 of the Identity Cards Act 2006; and, on 28 April 2011, he was sentenced to 18 months’ imprisonment. Because he had spent six months in custody on remand, his release date from the sentence was 25 August 2011; but his detention then continued under immigration powers.

In the meantime, as a result of his conviction and sentence, on 13 May 2011 he was notified of liability to deportation; and, on 18 December 2011, a deportation order was signed and served upon him.

During this period, Mr Lucas made an asylum claim on the basis that he had been the victim of a cult in Nigeria, and, if returned, he would be at risk of torture from (amongst others) his father. On 8 November 2011, that claim was refused by the Secretary of State who certified it as clearly unfounded; and, on 13 January 2012, further representations in the same vein were refused on the basis that they did not amount to a fresh claim. As I understand it, Mr Lucas now accepts that that application too was fabricated.

On 13 January 2012, Mr Lucas was interviewed by the Nigerian High Commission; but he claimed to them that he was a Cameroon national, and they thus refused to issue an ETD.

On 15 March 2012, the Secretary of State issued directions for his removal to Cameroon on 24 March 2012; but he could not be removed that day because he refused to leave the holding room. On 10 April 2012, directions were again set for his removal on 21 April 2012; but he was not removed that day because he bit a female member of the escort staff (for which he was later convicted of assault) and urinated on the plane resulting in his eviction from it.

On 18 July 2013, Mr Lucas was interviewed by the Cameroon High Commission, who wrote to the Secretary of State on 23 July 2013 stating that he was a Nigerian national, and that during his interview he had unequivocally admitted that he was Nigerian and had pleaded with them to help him frustrate the Secretary of State’s attempts to remove him there.

Mr Lucas had been in administrative detention since August 2011; but, on 5 August 2014, he was bailed by the FtT on the basis of a £10 recognizance and two sureties of £1,000. No complaint is made about his immigration detention for those three years.

The section of the bail grant headed “Primary Conditions of Bail” read as follows:

Mr Lucas was in fact released on that bail on 7 August 2014.

During the course of August 2014, the Secretary of State issued Mr Lucas with three forms purportedly imposing conditions upon him.

On the day he was released on the bail granted by the FtT (7 August 2014), the Secretary of State issued Mr Lucas with a Form IS.96 (Tag & Track), notifying him of temporary admission under paragraph 16 of Schedule 2. That purported to authorise his temporary admission to the UK subject to a number of restrictions, including residence, work and monitoring by tagging. It required him to attend Becket House for induction on the morning of 7 August 2014, and to be present at that same office every day until further notice; and to report to that office on 12 August 2014 and then on any other date that may be advised by the Home Office or immigration officer. The form indicated that, if he did not report in accordance with the restrictions in the notice, any unresolved application which he may have made for leave to enter might be refused. It is common ground that that notice was invalid – because temporary admission fell under paragraph 21 of Schedule 2 and that provision did not apply to a person in the position of Mr Lucas.

In addition, on that same day, the Secretary of State issued Mr Lucas with a Form DO4(EM), notifying him of restrictions purportedly imposed under paragraph 2(5) of Schedule 3. These were in generally similar terms to the Form IS.96, but, as well as the condition to “report in person to the immigration officer in charge at Becket House…” on 12 August 2014, there was a condition to report similarly again on 19 August and on any other date and time that may be advised by the Home Office or an immigration officer. Mr Singh frankly accepted that it was inappropriate for the Secretary of State to impose restrictions upon a person under paragraph 2(5) whilst that person was on bail, so that their validity is questionable.

On 26 August 2014, the Secretary of State issued a form indicating that Mr Lucas was liable to be detained under section 36(1) of the UK Borders Act 2007 (“the 2007 Act”), and purporting to impose conditions on him under section 36(5) again in similar terms to the Form IS.96 although the dates for reporting were later. That form said that, if he failed to comply with the restrictions without reasonable excuse, he would be liable on conviction to a fine of up to £5,000 and/or a term of imprisonment of up to six months. Section 36(5) provides that paragraph 2(5) of Schedule 3 applies to a person detained under section 36(1), i.e. a person detained pending a decision as to whether the automatic deportation provisions in the 2007 Act apply and, if they apply, whilst they are implemented. That notice too was misconceived, because Mr Lucas was not detained under those provisions.

It is common ground that, irrespective of the validity of the imposition of these conditions, Mr Lucas substantively complied with them all.

In the meantime, the Secretary of State continued to liaise with both the Nigerian and Cameroon authorities with a view to identifying Mr Lucas’s nationality, and obtaining an ETD to facilitate his removal from the UK. On 14 November 2014 and again on 30 March 2015, the Cameroon High Commission confirmed that they refused to accept Mr Lucas as a Cameroon national and they would not allow him to be removed to Cameroon. On 24 February 2015, Mr Lucas refused to participate in a telephone interview with the Nigerian High Commission with a view to obtaining an ETD.

As a result of the difficulties, the lack of cooperation given by Mr Lucas and the Cameroon authorities’ firm view that Mr Lucas was not a Cameroon national but rather Nigerian, on 15 June 2015, the Secretary of State referred him to the NIS Task Force Scheme.

The background to the scheme is set out in the witness statement of Martin Smith dated 10 May 2016. Mr Smith is Senior Country Manager (Returns Logistics) at the Home Office, and manages the Country Liaison and Documentation Team that deals with returns to Nigeria. He says that this scheme was set up because of the general difficulties in obtaining ETDs from the Nigerian High Commission in London. The Secretary of State sent a request to the NIS to send a team to conduct interviews with perhaps twenty individuals who were liable to deportation to Nigeria to establish nationality, over five interview days. As I understand it, the NIS insisted that they would only conduct interviews in detention centres or prisons, on a pre-arranged basis. If and when Nigerian nationality had been established through such an interview, then it was up to the Nigerian High Commission to issue an ETD.

The first visit by NIS officials occurred in January 2015. A second was planned for April 2015. On 17 March 2015, Mr Lucas was accepted for interview on that visit; although the visit was, in the event, postponed until 10 July 2015.

Mr Lucas was detained on 6 July 2015, when reporting to an immigration officer in accordance with the rolling conditions to which I have referred. In the letter of 8 July 2015 setting out the reasons for the detention, it was said that the detention was “under the powers contained in Schedule 3 of the Immigration Act 1971…to effect removal from the United Kingdom”. It said that it was regarded as “imperative” that he attend the NIS interview in order to obtain an ETD and progress his matter to removal. The letter set out Mr Lucas’s right to apply to be released on bail, in his case by making an application at any time to the FtT, or an immigration officer (within 8 days of being detained) or the Secretary of State (thereafter).

In the minute of the decision to detain dated 3 July 2015, which set out the reasons for detention at greater length, it was said that the main barrier to obtaining Mr Lucas’s removal from the UK was securing an ETD from the Nigerian High Commission. He had been non-compliant with the ETD/deportation process by continuing to state that he was a Cameroon national and had held back details which could have helped to secure an ETD. It concluded:

In the event, on 7 July 2015, Mr Lucas lodged a judicial review claim challenging his detention and seeking interim relief in the form of his release. That day, Blake J declined interim relief. However, at a hearing on 9 July 2015, Kenneth Parker J released him on an interim basis pending a bail hearing before the FtT then listed for 14 July 2015; and on condition that he attend a face-to-face interview with the NIS on 11 July 2015 or such other date to be notified by the Secretary of State. In the event, that timetable was changed, so that his interview was fixed for 16 July 2015. On 15 July 2015, Mr Lucas was granted bail by the FtT, on condition that he attend the interview; which, the next day, he did.

He was not accepted to be Nigerian at that interview: but, following the submission of further evidence by the Secretary of State (including a letter from the Cameroon High Commission), the Nigerian High Commission accepted him as Nigerian; and, on 27 July 2015, they issued an ETD for him. However, he was not in fact removed.

Mr Lucas’s judicial review claim proceeded. On 23 October 2015 he was refused permission to proceed by Sir Stephen Silber sitting as a High Court Judge; but, on 26 November 2015 at an oral renewal hearing, he was granted permission by His Honour Judge Seys Llewellyn QC sitting as a High Court Judge.

The substantive hearing of the claim took place on 4 July 2016 before Collins J, who found as follows.

There was no evidence before Collins J that Mr Lucas had in fact appeared before an immigration officer on 12 August 2014 as required by the primary condition of his 5 August 2014 bail. Collins J also considered that there was no evidence of any fresh grant of bail by any immigration officer: indeed, he found it was assumed that the grant of bail by the FtT on 5 August 2015 would continue with a condition that Mr Lucas report to an immigration officer at regular intervals (see [17]). He therefore found, on the facts, that the FtT bail granted on 5 August 2014 had continued (see [18]).

He held that it was not possible to use the general power of detention in paragraph 2(3) of Schedule 3 when a bail order was in force: Parliament had, in paragraph 24 of Schedule 2, set out the exclusive circumstances in which one who had been subject to immigration detention and had been bailed could be re-detained (see [23]).

The detention for the period 6-9 July 2015 was therefore unlawful.

However, Collins J found that an immigration officer could have required Mr Lucas to attend the detention centre to be interviewed by NIS officials as a term of his bail; and, had he done so, he would reasonably have suspected that Mr Lucas would not attend. In those circumstances, detention under paragraph 24 could have been imposed; and (Collins J found) “no FtT judge would have granted bail” (see [24]). In those circumstances, Mr Lucas was entitled to no more than nominal damages: and Collins J restricted relief accordingly (see [25]).

Collins J ordered the Secretary of State to pay half of Mr Lucas’s costs.

The Secretary of State appealed on a single ground, namely that Collins J erred in finding that the FtT bail order of 5 August 2014 was still in force on 6 July 2015; and thus he erred in concluding that the detention was unlawful.

Mr Lucas appealed, and served a Respondent’s Notice, on three grounds, namely:

Detention of an individual for the purpose of securing his attendance at documentation interview falls outside the principles in Hardial Singh. Detention must be used as a last resort, and should not be employed unless and until other alternatives have been employed, e.g. making attendance at the interview a condition of bail. It was never made a condition of Mr Lucas’s bail that he attend a documentation interview. But, even if it had been, detention would only be justified if there were a good reason to believe that he would not attend such an interview; and then detention would be justified for only 24 hours, before bringing him before the FtT in accordance with paragraph 24 of Schedule 2. It is submitted on behalf of Mr Lucas that Collins J’s judgment should in any event be upheld on this additional ground.

Collins J’s finding that “no FtT judge would have granted bail” under paragraph 24 was perverse. Mr Lucas should be entitled to full damages for any breach found.

Collins J erred in ordering the Secretary of State to pay only half of Mr Lucas’s costs. Mr Lucas was successful in his claim for unlawful detention, and should be entitled to his full costs.

There are therefore two primary issues for this court. First, did the FtT bail granted on 5 August 2014 continue to Mr Lucas’s re-detention by the Secretary of State on 6 July 2016? Ms Naik submits that it did; and so the re-detention without that FtT bail being varied was unlawful. Second, did the re-detention comply with the Hardial Singh principles? Ms Naik submits that it did not; and the re-detention was therefore unlawful on that ground in any event.

I will deal with these two issues in turn. In doing so, I will deal with other matters raised by the parties as they arise.

Before Collins J, there was no evidence as to whether Mr Lucas did or did not appear before an immigration officer on 12 August 2014, as required by the primary condition of his FtT bail granted on 5 August 2014. On the evidence produced since, it seems clear that he did.

Although not before Collins J, there is an entry in the Secretary of State’s computerised Case Information Database (“CID”) which indicates that he appeared before an immigration officer on 12 August 2014; and when, on 22 August 2014, Mr Lucas telephoned a Home Office case worker to say that he had received a Form ISE.343 warning letter for failing to report on 19 August 2014 – in contravention of the notice of restrictions reportedly imposed on 7 August 2014 in the Form DO4(EM) – he said that, when he reported on 12 August 2014, he had been issued with an IS.96 Notification of Temporary Admission requiring him to report on a fortnightly basis. That too indicates that he reported on 12 August as required. A CID note created on 22 August 2014 records that, that day, the case worker told Mr Lucas that the Form IS.96 had been issued in error, and that he was required to report on a weekly basis, which he then did.

I shall therefore proceed on the basis that Mr Lucas did appear before an immigration officer on 12 August 2014, as required by the primary condition of his FtT bail granted on 5 August 2014; although, for the reasons set out below (see paragraphs 55-56), the result of this appeal does not depend upon whether he did or not.

The issue as to whether the FtT bail continued after Mr Lucas had presented himself to an immigration officer on 12 August 2014, the main issue in the appeal, turns on the true construction of the 5 August 2014 bail granted by the FtT.

Bail in the context of criminal proceedings is the release of a defendant from custody on the basis of a condition that he will appear in court when required (the primary condition of bail) and additional conditions as to residence, reporting etc designed to secure that he does surrender to custody in accordance with the terms of that primary condition.

In the context of immigration bail, where there is an extant immigration appeal, the position is effectively the same. The Presidential Guidance Note No 1 of 2012 “Bail Guidance for Judges Presiding over Immigration and Asylum Hearings” (“the Guidance”) was issued by the President of the FtT effective from 11 June 2012 until last year when it was replaced. It was the relevant guidance at all material times for these appeals. The standard form primary condition of bail in a case where there was an immigration appeal pending was set out in Annex 8 in the following terms:

to attend the next and every subsequent hearing of the appeal at such places and times as shall be notified or as otherwise varied in writing by the Tribunal; and

following final determination of the appeal, unless bail is revoked by the Tribunal or by operation of law, to appear before an Immigration Officer at such time and place as directed by the Tribunal;…”

However, where there is no pending immigration appeal (as in both cases now before this court), the primary condition cannot of course be linked to a hearing. Unless it is to be of non-finite duration, when bail will end has to be linked to some other event.

Annex 8 of the Guidance suggested the following standard primary condition where a FtT judge granted bail but no appeal was pending:

The Guidance dealt with this primary condition, under the heading “Bail conditions that can be imposed by the [FtT] judges”, thus:

Although judicial rather than administrative guidance, the Guidance did not – indeed, could not – set out an authoritative statement of the law; but the standard form of primary condition of bail in these circumstances was considered by this court in a judgment handed down two days after the judgment of Collins J in this case, in R (AR (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 807; [2017] 1 WLR 255 (“AR (Pakistan”).

In AR (Pakistan), the issue arose in this way. The appellant was granted immigration bail by the FtT subject to various conditions. He applied to the Secretary of State to vary those conditions, without success. He sought judicial review of the conditions. In the face of the claim, the Secretary of State purported to vary the conditions by removing them. The Upper Tribunal (Immigration and Asylum Chamber) nevertheless proceeded to consider the judicial review claim, and held that the grant of bail with conditions by the FtT was of non-finite duration and therefore remained in effect, and the Secretary of State had no power to vary the conditions imposed by the tribunal which had the exclusive power to do so.

On appeal, Longmore LJ (with whom Jackson and Vos LJJ agreed) did not accept that analysis. He considered the Guidance reflected the true interpretation of the relevant provision. He said:

Mr Singh submits to this court that AR (Pakistan) points firmly – indeed, determinatively – in favour of his submission that the bail granted by the FtT on 5 August 2014 expired on 12 August 2014. I agree.

To clear the decks, I can deal with the situation if, as Collins J thought it might have been, Mr Lucas did not “surrender” to his bail on 12 August 2014, i.e. he did not appear before an immigration officer that day. Collins J appears to have assumed that, in those circumstances, the FtT bail would simply have continued; but, in my view, that would not have been so. Paragraph 22(1A) of Schedule 2 gives the FtT the power to release a person detained under paragraph 2(3) of Schedule 3 “conditioned for appearance at a time and place named in the recognizance… or at such other time and place as may in the meantime be notified to him in writing by an immigration officer”. As Longmore LJ observed on AR (Pakistan) at [26], quoted at paragraph 53 above, that is “a time-honoured form of words to express the idea of surrendering to bail”. A failure to surrender to bail as required does not leave the bail in place. In the criminal context it leaves the individual “at large”, and liable to be arrested and detained in custody; in the immigration context it leaves the individual liable to be detained under whatever underlying provision applies – in Mr Lucas’s case, paragraph 2(3) of Schedule 3 – and it leaves him liable to arrest under paragraph 17 of Schedule 2. Paragraph 24 of Schedule 2 gives a power of arrest in other circumstances, but not these.

Therefore, if, contrary to the current evidence, Mr Lucas did not appear before an immigration officer on 12 August 2014, his FtT bail would have summarily ended then. Any later bail would have been granted by the immigration officer to whom he (eventually) reported.

However, as I have indicated, I shall proceed on the basis that he did appear on 12 August 2014. That situation appears to be covered squarely by AR (Pakistan), Longmore LJ’s analysis being to the effect that the form of grant of bail used by the FtT was one which would have expired when Mr Lucas surrendered himself on 12 August 2014, with any conditions continuing as conditions of bail granted by the immigration officer. This court is bound by AR (Pakistan); but, for the avoidance of doubt, I should make clear that I agree with Longmore LJ’s analysis.

Ms Naik attempted to distinguish this case from AR (Pakistan) on the basis that AR (Pakistan) concerned the power to vary conditions of bail rather than the power to re-detain; and she submitted that, in this case, the FtT did not set any primary condition of surrender to an immigration officer such that compliance with that condition brought the immigration bail to an end. Importantly, she submits, there is no documentary evidence to support the Secretary of State’s contention that bail came to an end and was re-granted by the immigration officer on 12 August 2014, e.g. documents emanating from the officer indicating that he had himself considered and re-granted bail.

However, the form of grant of bail in AR (Pakistan) and in this case – each apparently deriving from the standard form in the Guidance – were essentially the same, and Longmore LJ’s analysis of that form of grant is equally applicable here. I fully accept that it would have been more helpful if on 12 August 2014 the immigration officer had recorded in writing the fact that he was granting bail on the same secondary conditions applied by the FtT on 5 August 2014; and if the Secretary of State had not produced the plethora of documents purporting to impose conditions on Mr Lucas without any proper legal foundation outside the bail he enjoyed (see paragraph 26 above). However, in AR (Pakistan), as here, there was no documentary evidence that the immigration officer had considered (and, in that case, varied) the secondary conditions – because, in that case, the Secretary of State had lost the relevant file. Such written evidence, whilst of course very helpful, is not necessary; nor, of course, can it be determinative of the true construction of a prior grant of bail by the FtT. As Longmore LJ emphasised in AR (Pakistan), secondary conditions imposed by the FtT are likely to be important guidance to an immigration officer as to the terms that might be appropriate for the future; and he (the officer) is likely to continue them unless there has been a change in circumstances sufficient to justify a departure from them.

Therefore, I do not consider Mr Lucas’s case is distinguishable from AR (Pakistan).

Undeterred, Ms Naik submitted that the approach of the court in AR (Pakistan) must now be reconsidered in the light of the recent (and post-AR (Pakistan)) judgment of the Supreme Court in R (B (Algeria)) v Special Immigration Appeals Commission [2018] UKSC 5; [2018] AC 418 (“B (Algeria)”). In B (Algeria), the appellant’s continuing immigration had been found to be unlawful as being in contravention of the Hardial Singh principles because there was no reasonable prospect of removing him to Algeria. The issue therefore arose as to whether it was lawful in those circumstances to grant him bail. The Supreme Court held that, as bail (potentially conditional) interfered with the liberty of the subject, paragraph 22 of Schedule 2 had to be strictly and restrictively construed; so that the condition precedent to the exercise of the power to grant bail under that paragraph – that the person concerned was “detained” – had to be taken to refer to lawfully authorised detention. As there was no reasonable prospect of removing the appellant to Algeria, he was not lawfully detained; and therefore the Commission could not grant him bail.

But I do not consider that that case assists Mr Lucas. On the issue to which I have referred, the Supreme Court upheld the analysis and conclusion of the Court of Appeal ([2015] EWCA Civ 445; [2015] 1 WLR 1031, especially at [31]-[37] per Lord Dyson MR with whom Richards LJ and Black LJ (as she then was) agreed); which was before this court in AR (Pakistan). No reference was made to it in Longmore LJ’s judgment; but, in my view, that is unsurprising. B (Algeria) was concerned with the issue of whether the power to grant bail was available in circumstances in which the relevant individual was not and could not be lawfully detained. In AR (Pakistan), it was uncontroversial that the Secretary of State had power to detain the appellant pursuant to paragraph 16(2) of Schedule 2 pending the giving of removal directions – just as, here, it is uncontentious that the Secretary of State generally had power to detain Mr Lucas under paragraph 2(3) of Schedule 3 – the issue being as to which grant of bail (FtT or immigration officer) was effective at the relevant time. The general and well-established proposition that provisions concerning the liberty of the subject, such as paragraph 22 of Schedule 2, have to be strictly and restrictively construed does not assist Ms Naik in her submissions in this case; nor does it require any reconsideration of AR (Pakistan).

Ms Naik relied upon two further authorities. First, she relied upon the determination of the Upper Tribunal (Immigration and Asylum Chamber) in R (Raza) v Secretary of State for the Home department (Bail – conditions – variation – Article 9 ECHR) IJR [2016] UKUT 132 as determining the point of construction of the standard form of grant of FtT bail in her favour. However, that submission was based on the proposition that AR (Pakistan) is distinguishable from Mr Lucas’s case which, I have found, it is not.

Second, Ms Naik relied upon Mahmood v Secretary of State for the Home Department [2006] EWHC 228 (Admin), and particularly the observation of Underhill J (as he then was) at [11]:

However, neither does this passage help Ms Naik. In Mr Lucas’s case, for the reasons I have given, at the time of his re-detention on 6 July 2015, the FtT bail was not still in place: there was no issue that the Secretary of State might have interfered with powers confined to the tribunal. Otherwise, Mahmood was a secondary conditions case; and, in that context, Underhill J’s observation merely chimed with the comments of Longmore LJ in AR (Pakistan), namely that any departure from conditions imposed by the FtT to the prejudice of the bailed person by the immigration officer would have to be justified.

For those reasons, I consider that the FtT bail came to an end when Mr Lucas surrendered to it on 12 August 2014. The immigration officer to whom he surrendered then re-fixed bail on conditions reflecting the secondary conditions imposed by the FtT. That surrender and re-fixing took place on a rolling basis until, on 6 July 2015, Mr Lucas surrendered to his bail and it was not re-fixed. He was detained pursuant to the underlying power to detain in paragraph 2(3) of Schedule 3. Ms Naik relied on paragraph 24 of Schedule 2, which gives an immigration officer power to arrest a person who has been released under paragraph 22 but with a requirement to produce him before the FtT or magistrate within 24 hours for consideration of bail. However, paragraph 24 is not in play here: at the relevant time, Mr Lucas had not been released on bail under paragraph 22, but rather he had surrendered to his bail. Any arrest was effected, not under paragraph 24 (which concerns the arrest of a person for actual or threatened breach of bail conditions when bail is still current), but under paragraph 17 of Schedule 2.

For those reasons, in my view, Collins J erred in his interpretation of the relevant statutory provisions: and, on their proper construction, the bail granted by the FtT on 5 August 2014 was not in force after 12 August 2014 and thus not at the time of Mr Lucas’s re-detention on 6 July 2015.

In Hardial Singh, Woolf J laid down a number of propositions for the exercise of the power to detain under paragraph 2(3) of Schedule 3. Over time, these principles have become honed; and, in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at [22], Lord Dyson JSC summarised them in four propositions, as follows:

At [104], Lord Dyson repeated his earlier observations in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196 at [48] with regard to what is a reasonable period in this context. Lord Dyson (at [104]):

Ms Naik submits that by detaining Mr Lucas on 6 July 2015 for the purpose of an interview scheduled with the NIS at Harmondsworth Detention Centre on 11 July 2015 in the absence of any removal directions, the Secretary of State acted contrary to the principles in Hardial Singh, i.e. arbitrarily and outside the powers given to her by paragraph 2(3) of Schedule 3. She submits that Collins J’s conclusion that the period of detention from 6 to 9 July 2015 was unlawful should be upheld on the alternative basis.

I am unable to accept that submission.

In the minute of the decision dated 3 July 2015 to detain Mr Lucas in July 2015 (see paragraph 33 above), the purpose of the detention was said to be “so that he may be interviewed by the Nigerian Officials on 11 July 2015 for the purpose of securing an ETD to effect his removal from the UK”. Similarly, the letter sent to Mr Lucas on 8 July 2015 (see paragraph 32 above) said that the detention was “under the powers contained in Schedule 3 of the Immigration Act 1971…to effect removal from the United Kingdom”. It said that it was regarded as “imperative” that he attend the NIS interview in order to obtain an ETD and progress his matter to removal.

It seems to me that all of the four Hardial Singh criteria were clearly satisfied.

The Secretary of State did intend to deport Mr Lucas, and used her power under paragraph 2(3) of Schedule 3 to detain him for that purpose. As Ms Naik frankly and rightly accepted – and as illustrated in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41; [2001] 1 WLR 3131 – within the scope of Hardial Singh, the purpose for which the power of detention can be lawfully exercised in respect of potential deportees extends to the administrative purposes of the operation of the machinery of removal including re-documentation. By July 2015, the only outstanding matter before removal was to obtain an ETD for Mr Lucas. In the past, he had been less than cooperative, and at times deliberately unhelpful and undermining of the Secretary of State’s efforts. The Nigerian High Commission did not always act with optimum efficiency and promptness. The Secretary of State intended for Mr Lucas to be interviewed by the NIS to assist in documenting him for removal to Nigeria; and, having obtained that documentation, intended to use it to remove him.

The Secretary of State could only detain him for a reasonable time. As to his detention at all, in the minute of 3 July 2015, the Secretary of State, having noted that he had been accepted on the NIS Taskforce Scheme and his history of disruption, concluded that he was a high risk to the public and a high risk of absconding; and so should be detained. In circumstances in which Mr Lucas had been, to say the least, uncooperative in the efforts to deport him, the conclusion that he would not attend an interview without being detained appears to me to be unimpeachable. Collins J found, as a fact, that no tribunal judge would reasonably have granted bail in these circumstances. Ms Naik – relying on the fact that the FtT did grant him bail on 15 July 2015 on condition that he attend a documentation interview the following day – submits that that finding was legally perverse; but, on the evidence, it seems to me that that was a finding to which Collins J could properly come. Certainly, the Secretary of State did not act unlawfully in concluding that it was appropriate and necessary to detain him.

As I have already indicated, it is not necessary nor do the Hardial Singh principles require that deportation in the form of actual removal is imminent. Mr Lucas was in fact detained for only three days. During the whole of that period, the Secretary of State had a proper expectation that, subject to the NIS and/or the Nigerian High Commission confirming Mr Lucas’s nationality and issuing an ETD (which they did), Mr Lucas could and would be removed in a matter of days. The fact that, in the event, he was released on bail and then removal directions were not fixed until early 2017 is not to the point: the delay was caused by the Secretary of State having to consider regular representations, and then defend her decisions not to accept them. That cannot affect the assessment of whether, in July 2015, there was a real prospect of removing Mr Lucas within a reasonable time for Hardial Singh purposes. There was compliance with the third principle, because at no stage during the period of detention did it become reasonably apparent that the Secretary of State would not be able to effect his deportation within a reasonable period of time

As to the fourth principle, there is no suggestion that the Secretary of State did anything other than act with reasonable diligence and expedition to effect Mr Lucas’s deportation.

For those reasons, I do not consider that Collins J’s judgment can be upheld on this alternative ground.

For the reasons I have given, subject to the views of my Lords, I would allow the Secretary of State’s appeal and dismiss Mr Lucas’s cross-appeal. I would quash paragraph (i) of the Order of Collins J dated 27 July 2016, namely the declaration that the Claimant was detained unlawfully from 6 to 9 July 2016. As to paragraph (ii) of that Order, which concerned the costs of the judicial review, unless they can be agreed, I would wish to see written submissions from the parties in relation to the costs of the claim and this appeal before determining any order.

Consequently, I am satisfied that the bail enjoyed by Mr Lucas after 12 August 2014 was immigration officer bail, with conditions imposed by him, and not FtT bail or any other form of order with restrictions, despite the orders purportedly made by the Secretary of State in this case (see paragraph 26 above).

As I have said, formal written evidence of the form of bail granted by an immigration officer is not a prerequisite for bail to have been granted; and, for the reasons given by Longmore LJ, there is a presumption that secondary conditions imposed by the FtT will be transposed into any future grant of bail by an immigration officer. Nevertheless, it seems to me that this case well-illustrates the importance of immigration officers understanding and properly recording the grants of bail that they make.

Mr Aboro was born on 6 July 1976. He is a Nigerian citizen. His immigration history is of similar length and convolution to that of Mr Lucas.

Mr Aboro entered the UK on about 21 January 2012 on a six-month visitor’s visa. He was arrested a week later when trying to leave the UK to go to France, with a false British passport which had been doctored to include his photograph. On 2 April 2012, he too was convicted of possessing identity documents with intent, and was sentenced to 12 months’ imprisonment. A deportation order was made under the UK Borders Act 2007, and served on Mr Aboro on 30 July 2012.

On 8 May 2012, he claimed asylum, which was the first of a series of applications to the Secretary of State, the tribunals and the courts, based upon alleged risks on return (including risks to his health), each of which ultimately failed.

Once his sentence of imprisonment had been served, he was detained in immigration detention until 23 September 2013 when he was released on bail by the FtT, on a recognizance of £10. The primary condition of bail was described as follows:

The applicant shall live and sleep at the address set out above.”

It seems that Mr Aboro was in fact released on that bail the following day (24 September 2013). In the meantime, the proliferation of applications continued. None met with ultimate success.

In July 2016, arrangements were made by the Secretary of State to charter a flight for removals to Nigeria on 27 September 2016. For those returnees who did not provide their own travel documents, a documentation interview process involving the NIS was planned for the first week in August 2016, but with a view to removal on the 27 September 2016 flight.

Mr Aboro was arrested at his home on 25 July 2016. In the letter given to him that day, the Secretary of State stated that, although there was a presumption in favour of release, it had been decided to detain him because:

Solicitors on behalf of Mr Aboro (Duncan Lewis) wrote a letter before action to the Secretary of State, requiring his release, on 29 July 2016. He was interviewed by the NIS on 3 August 2016. On 12 August 2016, the Secretary of State responded to the letter before action, including the following (at paragraph 5(vi)):

However, in the event, Mr Aboro was not removed. Through Duncan Lewis, on 26 August 2016 Mr Aboro commenced judicial review proceedings challenging the decision to detain him, on four grounds:

Ground 1: Whilst accepting Mr Aboro could not re-litigate his protection claim, his subjective fear of return meant that he could not fly to Nigeria.

Ground 2: Mr Aboro’s detention was unlawful because it was for the purposes of an interview with NIS officials not for the purposes of removal.

Ground 3: Mr Aboro could not be removed because he had an extant unlawful detention claim.

Ground 4: At paragraph 9 of the grounds, it was submitted that the Secretary of State could not detain Mr Aboro without producing him to the FtT under paragraph 24 of Schedule 2, because when arrested he was still on FtT bail.

As I have indicated, there was an issue raised by Mr Lucas as to his fitness to fly, but he was assessed as fit by 6 September 2016. The Secretary of State issued removal directions on 10 September for 27 September 2016. A flurry of correspondence and applications ensued, with Timothy Straker QC sitting as a High Court Judge refusing interim relief on 14 September 2016; and Jay J refusing permission to proceed with the judicial review claim on all grounds (which he declared to be totally without merit) on 26 September 2016. It is that order which is now the subject of an application for permission to appeal.

As I have described, it was intended to deport Mr Lucas the following day, 27 September 2016. He was taken to Stansted Airport, but returned to Brook House Immigration Removal Centre because in the event the Nigerian High Commission failed to provide the necessary ETD.

On 19 October 2016, through solicitors, Mr Aboro applied for bail, which was granted by the FtT on 27 October 2016.

Mr Aboro relied upon four grounds of appeal.

As Grounds 1 and 2, he submitted that there were no proper grounds to detain him on 26 July 2016 pending the issue of an ETD following an interview with the NIS; and, in fact, the period of detention did not lead to an ETD being issued. Ground 4 was that Jay J gave no discrete reasons for declaring the claim to be totally without merit. I refused permission to appeal on each of those grounds on the papers on 17 August 2017. That decision was final (see CPR rule 52.5).

The remaining ground was that Jay J had erred in concluding that Ground 4 of the judicial review claim (i.e. the Secretary of State could not detain Mr Aboro without producing him to the FtT under paragraph 24 of Schedule 2, because he was still on FtT bail) was unarguable. I adjourned the application for permission to appeal in respect of that ground into open court; and it is that application which is now before us. Having heard the argument – and on the basis that permission was granted in Mr Lucas’s case on the same point – I would grant permission to appeal.

I can, however, deal with ground shortly: it has the same basis as Ms Naik’s submission in relation to issue 1 in Mr Lucas’s case, and it must fail for the same reason. The form of grant of bail on 23 September 2013 by the FtT in this case (see paragraph 81 above) was that in the Guidance, and was the same as the form in AR (Pakistan) and Mr Lucas’s case. The primary condition was that Mr Aboro had to surrender to his bail at an address in Blackburn on 30 September 2013. He did so. For the reasons I have already given, upon surrender, his FtT bail ended. He remained on immigration bail as fixed by immigration officers from time to time. He was therefore not on FtT bail when he was re-arrested at his home on 25 July 2016.

However, Ms Naik submitted that Mr Aboro’s situation was materially different from that of Mr Lucas in one particular. Mr Lucas was detained when he surrendered to his bail: so he was not on bail when arrested. Mr Aboro was arrested at his home. Ms Naik submitted that the detention was unlawful, because he was still on immigration officer bail and therefore he was not liable to be detained under paragraph 2(3) of Schedule 3. He could not therefore be arrested under paragraph 17 of Schedule 2. He could have been arrested under paragraph 24; but only if he had breached a condition of bail or was reasonably likely to do so. The immigration officer could have varied his bail conditions, to require his attendance at the NIS interview, or at some other place and time; and the immigration officer reasonably feared he would not attend. But no such variation was made.

However, I am still unpersuaded. Mr Aboro’s liability to be detained under paragraph 2(3) of Schedule 3 remained extant. Whilst an immigration officer might not be able to override the terms of bail imposed by the FtT, I see no reason in principle why the Secretary of State, through her immigration officers, cannot bring bail which she has given to an end where there has been a change in circumstances. Here, the letter of 25 July 2016 set out the reasons why Mr Aboro had been detained, including that there was reason to believe that he would not comply with any restrictions that might be imposed upon him, notably attendance at the NIS interview. In any event, it would have been open to the immigration officer to have required Mr Aboro to attend him at short notice, in variation of the terms of bail, whereupon his bail would have terminated and he could then have been re-detained under paragraph 17 of Schedule 2 in any event. Therefore, even if I am wrong in considering that an immigration officer can use paragraph 17 during the course of immigration officer bail, Mr Aboro has suffered no loss or harm as a result.

I would therefore dismiss the appeal in respect of this remaining ground.

Ms Naik, however, seeks permission to amend the grounds of appeal to reinstate one of the grounds of appeal which I dismissed in August 2017, but in strengthened form.

It has been the position of the Secretary of State throughout this claim that “there is no special policy in relation to detaining Nigerian nationals for the purpose of emergency travel documentation interviews with [NIS] officials and the general law and policy as referred to in chapter 55 of the Enforcements Instructions and Guidance (EIG) applies” (letter Government Legal Department to Duncan Lewis dated 27 September 2016). However, on 5 October 2018 – very shortly before the hearing before this court – the Secretary of State disclosed two Interim Operational Instructions (“IOIs”) dated 3 March 2016 and 5 April 2016 which each refer to a particular proposed visit of NIS officials to interview potential deportees in detention centres. The criteria for selection of candidates for the scheme provide that subjects “must be detained in advance of the scheme”. Ms Naik submits that this discloses a policy on the part of the Secretary of State to detain all those who are to be the subject of the NIS scheme, without exception. That is contrary to the Hardial Singh principles.

However, I do not consider that this is a correct interpretation of the IoIs. First, I accept Ms Anderson’s submission that these are not policy documents, but rather (as their name suggests) operational instructions. It is of course possible that such documents reveal an underlying policy; but I do not consider that these disclose the policy which Ms Naik attributes to them. Read properly and in context, in my view they do no more than prescribe that only those who are in detention can be participants in the NIS scheme – which has been the Secretary of State’s position throughout. Being in detention is therefore a criterion of selection; but that is different from a policy that individuals who satisfy other criteria should be arrested and detained so that they can form part of the participant cohort.

Looking at the evidence as a whole, it is in my view clear that the Hardial Singh criteria were satisfied in this case.

The Secretary of State had a positive intention to deport Mr Aboro, and used her power under paragraph 2(3) of Schedule 3 to detain him for that purpose. By July 2016, the only outstanding matter before removal was to obtain an ETD for Mr Aboro. Whilst I accept that Mr Aboro had in the past been less uncooperative than Mr Lucas, he had used false identity documents and had not voluntarily returned to Nigeria despite the deportation order made against him. The Secretary of State clearly intended for Mr Aboro to be interviewed by the NIS to assist in documenting him for removal to Nigeria; and, having obtained that documentation, intended to use it to remove him. Indeed, he would have been deported on 27 September 2016 when he was taken to the airport for removal had it not been that the Nigerian High Commission had, for no obvious reason, failed to produce an ETD.

The Secretary of State could only detain him for a reasonable time. As to his detention at all, the letter of 25 July 2016 indicated that the Secretary of State took the view that Mr Aboro would not be cooperative with the removal process unless detained. Again, the conclusion that he would not attend an interview without being detained appears to me to be one to which the Secretary of State was entitled to come. Certainly, in my view, the Secretary of State did not act unlawfully in concluding that it was appropriate and necessary to detain him.

Mr Aboro was detained for about three months. However, during the whole of that period, the Secretary of State had a proper expectation that, subject to the Nigerian High Commission issuing an ETD, which following the NIS interview it appeared they would, Mr Aboro could and would be removed on 27 September 2016. No bail application was made prior to that date. After that date, an application was made and granted quite promptly. In my judgment, there was compliance with the third principle, because at no stage during the period of detention did it become reasonably apparent that the Secretary of State would not be able to effect his deportation within a reasonable period of time.

Again, as with Mr Lucas, as to the fourth principle, there is no suggestion that the Secretary of State did anything other than act with reasonable diligence and expedition to effect Mr Lucas’s deportation.

For those reasons, I do not consider this new proposed ground of appeal is arguable.

In respect of Mr Aboro’s applications, for the reasons I have given, again subject to my Lords, I would therefore refuse permission to amend the grounds of appeal; but, in respect of the ground of appeal adjourned into open court, I would grant permission to appeal but refuse the substantive appeal.

I should add that I have seen the judgment of Hamblen LJ, and I agree with it.

I agree with both judgments.

I also agree with the judgment of Hickinbottom LJ, but shall add some observations on a procedural issue raised on the appeal.

Since 3 October 2016 applications for permission to appeal to the Court of Appeal have been governed by CPR 52.5(1). This provides for such applications to be determined without an oral hearing unless the judge considering the application on paper directs that it be determined at such a hearing.

CPR 52.5 is in the following terms:

In the present case the formal order made by Hickinbottom LJ adjourned the permission application to an oral hearing, but the reasons given made it clear that he was only doing so in relation to one of the four grounds of appeal advanced.

In relation to three of the grounds Hickinbottom LJ stated as follows:

In relation to the fourth ground he stated that:

In these circumstances, an issue has arisen as to whether Mr Aboro can only raise the ground which was adjourned to be heard at an oral hearing.

Ms Naik for Mr Aboro contends that the whole permission application has been adjourned to an oral hearing and so he is entitled to raise any ground of the application. It is said that, absent an order expressly forbidding consideration of an issue, there is no basis in the procedure rules or underlying legislation for limiting the jurisdiction of the court.

Ms Anderson for the Secretary of State contends it is clear from his reasons that Hickinbottom LJ was refusing permission to appeal on the three other grounds and that there is no provision for these grounds to be “renewed” at an oral hearing. Further, he made directions specifically limiting the ground of appeal which could be considered at the oral hearing and in such circumstances it is not possible for other grounds to be pursued.

It is clear from his reasons that Hickinbottom LJ’s intention was to refuse permission to appeal on three grounds and to adjourn to an oral hearing one ground of appeal only. In my judgment that was also the effect of the order made. His ruling on the application has to be considered as a whole and it is clear from the reasons given that the only ground of appeal which was being adjourned to an oral hearing was the single ground identified by him. The other grounds of appeal are to be treated as having been refused on the papers and, under the CPR 52.5 procedure, such a decision is final and cannot be reviewed or appealed.

In order to avoid such arguments arising in the future, in cases where it is intended that permission be refused on the papers on some grounds and adjourned to an oral hearing on others, it would be preferable for this to be stated in the Decision box rather than just in the Reasons. The present form is being amended to make it easier for this to be done.