BB, R (on the application of) v Special Immigration Appeals Commission & Anor

The claimant is an Algerian national, aged 46, who arrived in the United Kingdom in 1995. He lives in the West Midlands with his wife and two daughters, aged 9 and 7, and their son, aged 5. The children, who were all born in the United Kingdom, go to a local school.

On 15^th September 2005, the Secretary of State made a decision to deport the claimant on national security grounds. He was arrested and detained by the Secretary of State exercising powers under Schedule 3 of the Immigration Act 1971. He appealed to the Special Immigration Appeals Commission against the decision to deport him. On 5^th December 2006, the SIAC dismissed his appeal, holding that he was a danger to national security and that his deportation would be in the public good. The SIAC delivered both an open and a closed judgment. The claimant appealed to the Court of Appeal. On 30^th July 2007, the Court of Appeal dismissed his appeal on the open grounds. On 18^th February 2009, the House of Lords dismissed the claimant’s appeal from that open decision. However, also on 30^th July 2007, the Court of Appeal had allowed the claimant’s appeal on closed grounds and remitted that matter to the SIAC for a rehearing. On 2^nd November 2007 at the rehearing the SIAC maintained its decision to dismiss the appeal on the closed grounds. The Court of Appeal granted permission to appeal that decision, but on 29^th July 2010 dismissed the substantive appeal. On 25^th March 2011, the claimant was granted leave to appeal against that decision to the Supreme Court, and that appeal is still pending.

The present proceedings concern the claimant’s bail. He is a person against whom there is an existing decision to deport on grounds of national security, which he is challenging. By section 3(1) and paragraph 1(4) to Schedule 3 of the Special Immigration Appeals Commission Act 1997, the SIAC has power to release the claimant on conditional bail to secure his appropriate future appearance before an immigration officer. This is the tortuously derived effect of Section 3 of the 1997 Act, and paragraph 2 of Schedule 3 and paragraph 22 of Schedule 2 to the 1971 Act.

The claimant was released on bail by the SIAC on 22^nd April 2008 and has remained so ever since, apart from two short periods of detention by the Secretary of State. He has been given permission to challenge the lawfulness of those detentions, and this claim is currently pending before the Administrative Court. On 24^th June 2009, the SIAC made an order varying some of his bail conditions but maintaining the 18 hour curfew. On 24^th July 2009, the claimant challenged this order in judicial review proceedings on the ground that his then bail curfew deprived him of liberty and that Article 5(4) of the European Convention on Human Rights entitled him to be told at least the gist of the undisclosed national security reasons relied on by the Secretary of State against him. After some delay waiting for another Divisional Court decision (R(Cart) v Upper Tribunal, and R(U and XC) v SIAC [2011] QB 120, on 25^th February 2011, the Divisional Court granted his claim, holding that bail conditions amounting to a denial of liberty based upon undisclosed allegations contravened Article 5(4).

On 8^th April 2011, the SIAC acceded to a proposal of the Secretary of State by reducing the claimant’s bail curfew to 16 hours. This arguably made a difference to the outcome of the Article 5(4) point by reason of the opinion of Lord Brown of Eaton-under-Heywood in Secretary of State for the Home Department v JJ and others [2008] 1 AC 385 at paragraph 105 (see below). On 23^rd and 24^th May 2011, the SIAC conducted a yet further bail hearing to determine as preliminary issues whether the varied bail conditions amounted to deprivation of liberty under Article 5(4). It was also contended on behalf of the claimant that the SIAC proceedings were proceedings within Article 6(1) of the Convention. On 27^th May 2011, the SIAC decided in favour of the Secretary of State to the summary effect that the varied bail condition did not result in the deprivation of the claimant’s liberty for the purposes of Article 5(4) of the Convention, and that the bail proceedings before the SIAC were not proceedings to which Article 6(1) of the Convention applied. The judicial review claim presently before this court seeks to challenge each of these decisions. On 17^th June 2011, Collins J adjourned the claimant’s application for permission to bring the claim for an oral hearing with the substantive claim to be heard at the same time, if we grant permission. The hearing before us took place after a commendably short period on 7^th July 2011. We then informed the parties that we would refuse permission on the Article 5(4) claim which we now do on the public delivery of this judgment. We now grant permission on the Article 6(1) claim, but dismiss it. These are our reasons.

The claimant’s current bail conditions as set out in the SIAC’s judgment are as follows:

“i)

he must wear an electronic tag at all times;

ii)

he must reside at a named address in [the city];

iii)

he is subject to a curfew, at that address, from 18.00 to 10.00 hours each day;

iv)

he may use the garden of his home during daylight hours only;

v)

when leaving his home for the first time and returning to it for the last time on each day, he must telephone a monitoring company;

vi)

when outside his home he must not go beyond a bail boundary, which is drawn so as to include the whole of the city centre and a substantial part of the residential areas of [the city]. Within that boundary, all the facilities required for ordinary daily living and social life (for example, shopping and routine medical facilities, a mosque, his children’s schools and recreational parks) are to be found;

vii)

he must permit the Police, the Secretary of State’s officers and the monitoring company to enter and search his home at any time;

viii)

apart from his immediate family and any child under 16 (apart from some others who may provide professional assistance to him and his family) he may only admit to his home individuals who have been approved by the Secretary of State on supply by him of their name, address, date of birth and a photograph;

ix)

he may not, without the Secretary of State’s prior agreement, meet any person outside his home by prior arrangement;

x)

he may not use or keep any mobile telephone or computer or permit the same to be brought into his home.”

The SIAC explained that, although the claimant was initially happy to have been released from immigration detention and to be with his family, he and they have found the bail restrictions burdensome and troublesome. The SIAC summarised the principal complaints as follows:

“i)

He and his family, especially his wife, feel socially isolated. While he was in detention, she was given NASS accommodation in [the city], and so separated from their friends in London. They have found it difficult or impossible to make new friends in [the city], because of the need to provide details to the Secretary of State before visitors can be cleared to enter their home. Because they do not wish to advertise their circumstances to potential friends, they have not sought such clearance.

ii)

The bail boundary and curfew impose upon BB difficulties in emergencies – for example, when his wife recently went missing and/or suffered a medical emergency which required specialist treatment outside the boundary.

iii)

Police and UKBA Officials visit his house about once a week.

iv)

The prohibition on computers impairs his children’s schooling, his own wish to undertake training courses and the family’s ability to communicate remotely with others.”

Article 5(4) of the Convention provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The short point for present purposes is that, if the bail conditions mean that the claimant is detained, Article 5(4) applies and his bail proceedings before the SIAC have to comply with the procedural requirements which Article 5(4) has acquired, so that, as the Divisional Court has determined in his earlier case, he would be entitled to the disclosure of the gist of the national security allegations against him. The SIAC recorded in its judgment presently under consideration that the parties agreed that, if the current bail conditions do not deprive the claimant of his liberty, the procedural requirements of Article 5(4) would not apply to any hearing in which he seeks to have those conditions relaxed or removed, because the hearing would not decide the lawfulness “of his detention”.

In Secretary of State for the Home Department v JJ, the majority of the House of Lords held that the right to individual liberty in Article 5(1) of the Convention connoted the physical liberty of the person. Deprivation of liberty may take a variety of forms other than classic detention in prison or strict arrest. The difference between deprivation of and restriction on liberty is one of degree, not substance, and it is the court’s task to assess into which category a particular case falls. The court has to consider the concrete situation of the particular individual and take account of a whole range of criteria including the type, duration, effect and manner of implementation of the measures in question; and to assess their impact on the individual in the context of the life he might otherwise be living. This is a close paraphrase of part of the head note in JJ.

In Secretary of State for Home Department v AP [2010] 3 WLR 51, Lord Brown, with whom the other six members of the Supreme Court agreed, approved in paragraph 1 as entirely accurate a rather shorter quotation from the head note in JJ. He then said this:

“Lord Hoffmann’s view, shared by Lord Carswell, that “the concept of deprivation of liberty [should be confined] to actual imprisonment or something which is for practical purposes little different from imprisonment” (para 44) did not prevail. Nevertheless, as Lord Bingham of Cornhill pointed out in Secretary of State for the Home Department v E [2008] AC 499, para 11 – one of the two associated appeals also then before the House – what principally must be focused on is the extent to which the suspect is “actually confined”: “other restrictions (important as they may be in some cases) are ancillary” and “[can]not of themselves effect a deprivation of liberty if the core element of confinement … is insufficiently stringent”.

The committee in both cases recognised that Guzzardi v Italy (1980) 3 EHRR 333 was still the leading Strasbourg authority on the question and so it remains to this day; no subsequent decision of the European Court of Human Rights casts the least doubt upon the correctness of the majority view in the JJ case [2008] AC 385. In the context of control orders, it therefore follows that within what has been described as the grey area between 14-hour and 18-hour curfew cases, other restrictions than mere confinement can tip the balance in deciding, as in every case the judge has to decide as a matter of judgment, whether the restrictions overall deprive the controlee of, rather than merely restrict, his liberty.”

Lord Brown remained of the view that for a control order with a 16 hour curfew to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life the controllee might otherwise have been living.

The watershed of 16 hours for a curfew derived in part at least from paragraph 105 of Lord Brown’s opinion in JJ. He there expressed a conclusion that 18 hour curfews are simply too long to be consistent with the retention of physical liberty. 12 or 14 hour curfews are consistent with physical liberty. The Secretary of State should not be kept guessing as to the precise point at which control orders would be held vulnerable to Article 5 challenges. Lord Brown would regard the acceptable limit to be 16 hours, and such a regime could and should properly be characterised as one which restricts a suspect’s liberty of movement rather than actually depriving him of his liberty. That, however, should be regarded as the absolute limit.

In Secretary of State for Home Department v AH [2008] EWHC 1018 (Admin), Mitting J had distilled 5 principles from JJ, which he set out in paragraph 5 of the SIAC’s judgment in the present matter. Those principles had been applied by Keith J at first instance in AP [2008] EWHC 2001 (Admin) and they were referred to with apparent approval in Lord Brown’s opinion in AP in the House of Lords at paragraph 4. One of these principles was “Social isolation is a significant factor, especially if it approaches solitary confinement during curfew periods.”

In the present case, the SIAC applied these principles and it not suggested that they were wrong to do so. What was required was an assessment of the “concrete situation”. That is an exercise of judicial judgment. Mr Southey QC, for the applicant, accepted that in this proposed judicial review of the SIAC’s decision, he had to persuade us that the SIAC’s evaluative factual conclusion was perverse. We note that in paragraphs 19 and 20 of AP Lord Brown agreed with observations in the Court of Appeal in that case that judges of the Administrative Court have developed special expertise and experience in relation to control orders, not generally shared by members of the appellate courts, and are much better placed to develop consistent practice for dealing with such orders and to provide continuing supervision of their making, variation and implementation. It is generally wise not to interfere with their decisions in control order cases. The same, in our view, goes for bail applications in deportation cases for national security reasons.

The SIAC were satisfied in this case that the current bail conditions did not deprive the applicant of his liberty. The 16 hour curfew did not by itself do so. The additional restrictions, burdensome though they might be, did not tip the balance. The SIAC had regard to four considerations. First, the applicant had not been removed from his family and friends. He lives with his wife and children in a home allocated to them by NASS. This was in the West Midlands, not London, because his wife had accepted accommodation there while the applicant was in detention.

Second, their claimed inability to make new friends resulted from their unwillingness to disclose their circumstances to others. This was understandable, but not reasonable. Other SIAC appellants had successfully sought clearance for visitors which had readily been granted. It was far from clear why a teacher at the children’s school had refused to seek clearance. It was not clear why discreet inquiries of parents of friends of the applicant’s children might not result in visits.

Third, those who had implemented the conditions had admittedly done so in a respectful and considerate manner.

Fourth, the remaining restrictions did no more than affect particular aspects of the applicant’s life.

The SIAC then concluded this part of their consideration as follows:

“We are conscious of the fact that the mental condition of BB’s wife is fragile and that the circumstances in which she and her husband find themselves contribute adversely to that condition. BB has an excellent and, by now, long established, record of compliance with bail conditions. SIAC is willing to consider further relaxation of those conditions. For example, the requirements relating to the identification of visitors to BB’s home who are the parents of children at their children’s school might be modified, to delete the requirement for the provision of a photograph and date of birth. Such requirements are necessary, in the case of those newly admitted to bail, but might not be in the case of those, like BB, who have demonstrated, long term trustworthy compliance. These are matters of detail – albeit, significant detail – which can and should be considered at a subsequent bail hearing.”

The proposed grounds of appeal on the Article 5(4) point are within a narrow compass. It is first submitted with reference to paragraph 15 of Lord Brown’s judgment in AP, that, in assessing whether there is a deprivation of liberty, the failure of family and friends to overcome the difficulties arising from the bail conditions is to be disregarded only if it is unreasonable. The fact that the claimant has been granted anonymity throughout his proceedings is an indication that his disinclination from revealing his circumstances is well founded. His evidence, which the SIAC did not reject, is that friends and potential visitors refused to apply for permission to visit because they do not want to be screened or associated with a person regarded, for undisclosed reasons, as a threat to national security. The SIAC’s finding that the claimant was acting unreasonably in relation to disclosure of his circumstances was perverse and inadequately reasoned. The SIAC’s reference to other SIAC appellants did not show that the claimant in his circumstances was being unreasonable.

Mr Southey accepted that this part of the claim needs to assert that the SIAC’s decision was perverse, because the decision was evaluative fact finding and no and judicially reviewable point of law arises otherwise. He submitted that a 16 hour curfew was on the borderline where social isolation could tip the balance towards deprivation of liberty. He stressed the effect on the applicant’s wife and children, who were particularly affected by the ban on computers. The bail conditions had been in force for some time, so that the restrictions became progressively more oppressive.

We refuse permission to bring this part of the proposed claim because, in our judgment, it has no real prospect of success and is without merit. We do not consider that the part of SIAC’s judgment which is criticised was perverse. On the contrary, the claimant’s disinclination from disclosing or having disclosed his circumstances is his own choice which might well, if he chose, be overcome. However that may be, and even supposing that his and his friends’ attitude is not unreasonable, and having due regard to the aspects of social isolation relied on, we do no consider that it is reasonably arguable that the claimant’s bail conditions as a whole amount to deprivation of liberty. He is living with his wife and children who are able to go to school. He is under curfew for 16 hours, but on the positive side he is able to leave his home between the hours of 10am and 6pm, that is during most of the normal day time, and his bail boundary is reasonably extensive and comprises all the facilities for ordinary daily living and social life. He does not, for instance, live in a small rural town or village with no shops. He is not during this period confined, and the period during which he is confined to his home is mainly at night during much of which he would be at home and asleep anyway. We do not consider it to be arguable that the conditions other than the 16 hour curfew are unusually destructive of the life he might otherwise be living. That would be our evaluation, if we were called upon to make it. In fact, however, we are required to consider whether the SIAC’s evaluation was perverse, and we are quite clear that it was not.

The claimant’s second ground of claim is that, even if his bail conditions do not deprive him of liberty, Article 6(1) of the Convention applies to his bail proceedings so that similar procedural obligations as to disclosure arise. The second preliminary issue which the SIAC decided was whether Article 6(1) did apply to these proceedings. They decided that it did not, and the claimant contends before us that they were wrong.

Article 6(1) of the Convention provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The claimant’s case before the SIAC was mainly concerned with whether the effect of the bail conditions was to infringe his common law and Convention rights, and whether those rights are civil rights under Article 6(1). The Secretary of State did not contest those submissions, nor was it contested that the bail conditions affected the claimant’s private and family life. The Secretary of State’s case was and is that proceedings to determine immigration bail conditions are not proceedings which determine civil rights and obligations, and that Article 6(1) does not apply because these are (a) interim proceedings in (b) deportation proceedings. This may seem a strange submission to a common lawyer, but there is solid Strasbourg authority to support it. The two principal authorities are Maaouia v France (2001) 33 EHRR 42 and Micallef v Malta (2010) 50 EHRR 37.

The SIAC noted that bail is an alternative to immigration detention, and that two relevant circumstances in which the SIAC had powers to grant bail are when the Secretary of State certifies that detention is necessary in the interests of national security, and when a person is detained following a decision to make a deportation order against him on the ground that his deportation is in the interests of national security. In neither case is it necessary that the person should give notice of appeal against an immigration decision to SIAC. Mr Southey repeatedly stressed before us this possibility, that is that there may be SIAC bail proceedings without or before any underlying deportation proceedings.

The SIAC said, with reference to the paragraphs of Schedule 2 of the 1971 Act to which we have already referred, that the clear underlying purpose was that bail conditions are intended to secure the attendance of the person bailed before an immigration officer at a particular time and place, in short, to avoid him absconding before he is deported, a risk which it was accepted was relevant to SIAC’s bail decisions.

In Maaouia, the Tunisian applicant had a deportation order made against him and subsequently an order excluding him from French territory. These orders were subsequently quashed and rescinded respectively by French courts. Relying on Article 6 of the Convention, the applicant complained that the length of the proceedings had been excessive and unreasonable. A Grand Chamber of the European Court of Human Rights held by a majority of 15 to 2 that Article 6(1) did not apply. Their reasoning is accurately summarised in the head note substantially as follows:

“(a)

The concept of “civil rights and obligations” and “criminal charge” cannot be interpreted solely by reference to the domestic law of the respondent state. These concepts are autonomous. To hold otherwise might lead to result[s] that are incompatible with the “object and purpose” of the Convention. [34]

(b)

The provisions of the Convention must be construed in the light of the entire Convention system. [36]

(c)

Article 1, Protocol No. 7 contains procedural guarantees applicable to the expulsion of aliens. Having regard to the preamble and the explanatory report to that instrument, member states clearly intimated their intention not to include such proceedings within the scope of Article 6(1). [36-37]

(d)

Proceedings for the rescission of an expulsion order do not concern the determination of a “civil right”. The fact that the exclusion order incidentally had major repercussions on the applicant’s family and private life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1). [38]

(e)

Neither do such orders constitute the determination of a “criminal charge”. The domestic characterisation of a penalty cannot, by itself, be decisive for determining whether a penalty is criminal in nature. In general, member states characterise exclusion orders as special preventative measures for the purposes of immigration control. The fact they are imposed in the context of criminal proceedings cannot alter their essentially preventative nature. [39]

(f)

In conclusion, decisions regarding the entry, stay and deportation of aliens do not concern civil rights and obligations or criminal charges within the meaning of Article 6(1) of the Convention. [40]”

In Micallef, the Grand Chamber considered four tiers of proceedings in Malta: (1) proceedings in which an injunction was granted; (ii) proceedings in which the fairness of the injunction was contested (the appeal against which was the subject of the complaint before the European Court); (iii) the main proceedings, which were a dispute between neighbours about hanging out clothes to dry; and (iv) constitutional proceedings in which the impartiality of the Chief Justice sitting in the Court of Appeal was in issue. The main finding of the court was that there had been a violation of Article 6(1) in respect of the requirement of impartiality, but the court considered principles relating to the applicability of Article 6(1) to interim measures.

The court reiterated in paragraphs 74 and 75 of its judgment, that for Article 6(1) in its civil limb to be applicable, there must be a dispute over a “civil right” recognised under domestic law for which, among other things, the result of the proceedings must be directly decisive for the right in question. Preliminary proceedings, such as those concerned with the grant of an interim measure such as an injunction, are not normally considered to determine civil rights and obligations and do not normally fall within the protection of Article 6(1). Cases cited in support of this are given in the court’s footnote 31 and concern interim measures taken in existing proceedings. There was an exception where the interim measure was “drastic, disposed of the main action to a considerable degree, and unless reversed on appeal would have affected the legal rights of the parties for a substantial period of time”. There was, however, a need to develop a new approach, because many contracting states face considerable backlogs in their over-burdened justice systems, so that a judge’s decision on an injunction will often be tantamount to a decision on the merits for a considerable period of time, even permanently in exceptional cases (paragraph 79). It was no longer justified to characterise injunction proceedings automatically as not determinative of civil rights or obligations (paragraph 80).

The court expressed the new approach as follows:

“83

As previously noted, art.6 in its civil “limb” applies only to proceedings determining civil rights or obligations. Not all interim measures determine such rights and obligations and the applicability of art.6 will depend on whether certain conditions are fulfilled.

84

First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under art.6 of the Convention.

85

Secondly, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, art.6 will be applicable”

The Secretary of State’s case advanced by Mr Tam QC on her behalf is essentially this. The claimant’s deportation proceedings are neither civil proceedings nor criminal proceedings, but “autonomous” public proceedings to which Article 6(1) does not apply (Maaouia). The SIAC bail proceedings are either themselves within the umbrella of the deportation proceedings (and thus directly covered by Maaouia) or – which is much the same thing – interim proceedings or measures in the deportation proceedings to which Micallef applies. The SIAC bail proceedings do not determine the claimant’s rights and obligations in the deportation proceedings, and it is certainly not the case that the rights at stake in both the deportation proceedings and the SIAC bail proceedings are “civil” within the autonomous meaning of that notion under Article 6 of the Convention. Accordingly, these are interim proceedings outside the ambit of Article 6(1). The SIAC in substance accepted these submissions and held that Article 6(1) did not apply.

The essence of the claimant’s case is that the SIAC bail proceedings should be regarded as detached from the deportation proceedings, and as proceedings which do determine, so long as they last, the claimant’s civil and human rights. His liberty is restricted within this jurisdiction and Article 6(1) should apply. Article 6(1) applies, when it is read in the light of the Convention as a whole, to proceedings concerning bail conditions which deny civil and human rights, even though the power to detain arises because deportation proceedings are afoot. In 1984, the contracting parties to the Convention adopted (although not all ratified) Article 1 of Protocol 7, which contains procedural guarantees applicable to the expulsion of lawful immigrants. It is submitted that, by adopting Article 1 of Protocol 7, the contracting states carved out deportation and exclusion decisions from the scope of Article 6. The exception is inconsistent with the court’s general approach to Article 6(1), but is justified once Article 6(1) is considered in the light of Article 1 of Protocol 7. The immigration exception should therefore be confined to the class of decisions referred to by the European Court in Maaouia, that is, proceedings concerning decisions determining entry, stay or expulsion of lawful immigrants. The extension of this exception to proceedings about bail conditions, which determine common law and human rights, is not justified by Article 1 of Protocol 7. The SIAC rejected this submission and found that the intention of Article 1 of Protocol 7 was to afford minimum guarantees to aliens in the event of expulsion from the territory of a contracting party and therefore to grant rights that were not previously enjoyed. The claimant contends that if this were correct, there would have been disparity between the rights afforded to aliens in the territory of contracting states that had ratified Article 1 of Protocol 7 and of those that had not.

As to Micallef, the claimant submits that this should be confined to some injunction proceedings in ordinary civil proceedings. The right at stake in deportation proceedings is that of entry and stay in the United Kingdom. The rights at stake in bail proceedings are common law and human rights. The two proceedings do not have the same right at stake and should be regarded as separate. The bail proceedings are not to be seen as interim proceedings in deportation proceedings, but as proceedings arising from the Secretary of State’s power and decision to detain. The SIAC found that the reason for the detention was to secure the claimant’s attendance for removal, but in some circumstances bail proceedings can exist when no deportation proceedings at all are on foot. Mr Southey further submits, as the SIAC recorded in paragraph 13 of the judgment, that the claimant’s bail conditions have a great deal in common with conditions imposed by the most restrictive non-derogating control orders, to the judicial review of which Article 6(1) undoubtedly applies. The effect upon the individual is, while the order or bail conditions endure, identical. He submits that there is no difference in principle between them and that Article 6(1) should apply, as it does to control orders. Mr Southey refers to Secretary of State for the Home Department v BC [2010] 1 WLR 1542, a decision of Collins J in the Administrative Court, and tells us that in another case pending before the Supreme Court the Secretary of State has withdrawn a contention that Article 6(1) does not apply to proceedings relating to control orders.

Mr Southey referred us to Jurisic v Austria (App. No. 62539/00, 27.7.07) which concerned an Austrian scheme for giving approval for foreign nationals to work. The applicants had been refused a permit for the first applicant, a national of Bosnia and Herzogovina, to work for the second applicant, an Austrian employer, and the applicants complained to the Administrative Court requesting an oral hearing. The Austrian Government contended that the proceedings did not involve the determination of a civil right because the primary purpose of the work permit was public. The court concluded (paragraphs 54 to 60) that the proceedings were directly decisive of each applicant’s civil rights under their joint application for an employment permit. Mr Southey submits that the case concerned a recognised public interest in controlling the labour market, just as in the present case there is a public interest in a foreign national and his private interest. In our judgment, Jurisic, which concerned employment matters within Austria, has no impact on deportation proceedings and has no real persuasive impact on the question whether the SIAC bail proceedings are to be regarded as separate from the deportation proceedings for Article 6 purposes. Mr Southey submits that bail proceedings should not be regarded as interim proceedings. Micallef concerned traditional injunction proceedings, which are to support a claim made in the main proceedings. With bail proceedings, the issues are different. He referred us to paragraphs 57-58 of Lord Dyson’s judgment in R (G) v The Governors of X School [2011] UKSC 30 for a short discussion about the concept of irreversible prejudice in the context of civil claims for interim measures, in which Lord Dyson made short reference to the Grand Chamber’s approach to interim measures in Micallef. This did not, in our view, advance or affect the question of the application of Micallef to the present case.

Mr Tam submits that the SIAC’s decision that Article 6(1) does not apply was correct for the correct reasons. SIAC bail proceedings are not free standing. They are always, he submits, interim measures directed to deportation, in the sense that they are always in aid of adverse immigration action or in consideration of adverse immigration action. He referred us to the detail of the relevant legislation to which we have already referred. Immigration detention is to give effect to immigration control and is in aid of immigration measures. So also is immigration bail. There may be temporary admission of a foreign national who arrives requesting leave to enter. Bail under paragraph 22 of Schedule 2 of the 1971 Act is another alternative to detention. Bail is always of an interim character to further immigration measures that are being taken or contemplated. If adverse immigration action or detention is abandoned, the power to detain and grant bail automatically ceases. In our view, the detail of the legislation entirely supports this submission. We have already noted, as did the SIAC, that SIAC bail is conditioned to secure the appearance of the person bailed before an immigration officer.

Mr Tam submits that the Convention rights at stake are not civil rights neither are interim measures relating to them. He accepts that there is a class of rights which are civil rights and that deportation may affect those rights. But deportation proceedings are outside Article 6. The question is whether they determine civil rights. Consideration may have to be given to whether a proposed deportation would infringe Article 8 for instance, but the proceedings do not determine civil rights. What they determine is whether there should be a deportation or not. Determination whether a person should be given leave to enter or remain or be removed is not the determination of civil rights. It may be that in deportation proceedings Convention rights may be permanently affected, but that is the consequence of the determination, not that which is determined.

Mr Tam referred us to the recent decision of the Court of Appeal in Secretary of State for the Foreign Office and Commonwealth Affairs v Maftah and Khaled [2011] EWCA Civ. 350. The claimants were Libyans who had lived in the United Kingdom for many years. They were placed at the instigation of the United Kingdom Government on a list maintained by the Sanctions Committee of the United Nations Security Council of persons believed to be associated with terrorists. The purpose and effect of the listing was to freeze all their assets. They brought claims for judicial review, and Keith J, sitting as a judge of the Administrative Court, determined upon a preliminary issue that their applications for judicial review potentially involved the determination of rights governed by Article 6 of the Convention. The Court of Appeal allowed an appeal, determining that they did not. Sedley LJ, with whom Smith LJ and the Lord Chief Justice agreed, gave the leading judgment. The Lord Chief Justice added for emphasis that he would need a great deal of persuasion to accept that the standard of fairness set by the common law for the determination of issues arising in civil litigation is any less robust than the standard set by Article 6 of the Convention. Relevantly for present purposes, Sedley LJ said at paragraph 24:

“What seems to me to emerge from the present Strasbourg jurisprudence is that, while civil rights within the autonomous meaning of article 6 can be brought into play either by direct challenge or by administrative action, it is the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights. Thus, for example, the nature and purpose of taxation are such that, despite its direct impact on property rights, taxation falls outside article 6; while the nature and purpose of professional regulation are such that its impact on the right to earn a living may bring it within article 6.”

He then said at paragraph 26:

“In my judgment the critical question is therefore the one spelt out in §24 above, uncoloured by the rhetoric of state sovereignty. I confess that I find the categorisation of freezing orders in this context extremely difficult, because the nature and purpose of freezing orders can themselves be legitimately described both as a step in the international struggle to contain terrorism and as a targeted assault by the state on an individual’s privacy, reputation and property. The heart of Keith J’s decision was that the orders were in form the first but in substance the second of these things; but I am not convinced that the Strasbourg jurisprudence looks to this distinction. It seems to look, rather, to the nature of the power itself. So seen, the making or procuring of a freezing order is, I think, a discharge of public functions, albeit with a dramatic impact on the civil rights of individuals. It is challengeable in public law, but the challenge is to the procuring and continuance of the order, not to its effects.”

Mr Tam then referred us to paragraph 68 of Lord Justice Dyson’s judgment in G, where he said:

“Thus, in deciding whether article 6(1) applies, the ECtHR takes into account a number of factors including (i) whether the decision in proceedings A is capable of being dispositive of the determination of civil rights in proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B; (ii) how close the link is between the two sets of proceedings; (iii) whether the object of the two proceedings is the same; and (iv) whether there are any policy reasons for holding that article 6(1) should not apply in proceedings A.”

The second of these factors is of particular relevance in the present case, where the link between the deportation proceedings and the bail proceedings is, as Mr Tam would have it, unbreakable.

In our judgment, Mr Tam’s submissions are entirely persuasive, such that we consider that the SIAC reached the correct conclusion for the correct reasons. Decisions regarding the entry, stay and deportation of aliens do not concern civil rights and obligations within the meaning of Article 6(1) of the Convention (Maaouia paragraph 40). That applies to immigration measures which do not, or do not yet, result in proceedings but may result in immigration detention. SIAC bail proceedings only take place in the direct context of deportation proceedings (or immigration measures). They are an alternative to or relaxation of immigration detention and are directly in aid of contemplated deportation, conditioned on the person’s future attendance before an immigration officer. SIAC bail proceedings may affect a person’s civil and human rights, but they do not determine them, in the sense that the relevant issue at stake is the question of deportation. The bail proceedings are properly to be characterised as interim proceedings in the deportation proceedings or proceedings ancillary to the deportation proceedings. Article 6(1) of the Convention does not apply to them because they are part of the deportation proceedings to which paragraph 84 of Micallef does not apply. Neither does paragraph 85 apply, because the bail proceedings do not effectively determine the civil right or obligation at stake, which in the context has to mean the right at stake in the deportation proceedings. This does not, of course, mean that the bail proceedings risk being unfair for the reason given by Lord Judge in Maftah and Khaled. As to Mr Southey’s particular submissions, Article 1 of Protocol 7 was considered in Maaouia with the outcome that we have discussed. As to the rights at stake, it is accepted that bail proceedings may affect the claimant’s common law and human rights, but, as Sedley LJ said in Maftah and Khaled, the bail proceedings are part of a discharge of public functions, albeit with an impact on the civil rights of the individual. There is not just a close link, but an inseparable link between the deportation proceedings and the bail proceedings. However, the decision in the bail proceedings is not in any way dispositive of the determination of the deportation proceedings, which in any event do not concern civil rights within Article 6(1) – see paragraph 84 of Micallef and paragraph 68 of Dyson LJ’s judgment in G. Finally, there is no close parallel with control orders, where deportation is not the issue at stake.

As we have said, we give permission for this second ground of challenge, but dismiss the claim on that ground.