Deportation - Bail - National Security

R (on the application of BB) v Special Immigration Appeals Commission: Queen's Bench Division, Divisional Court (Sir Anthony May, Mr Justice Maddison): 2 August 2011

The claimant was an Algerian national who arrived in the United Kingdom in 1995. He and his wife lived in the West Midlands with their three children all of whom were aged under ten and who had been born in the UK. In 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, the interested party in the instant proceedings, pursuant to powers under Sch 3 of the Immigration Act 1971. He appealed to the defendant Special Immigration Appeals Commission (SIAC) against the decision to deport. His appeal was dismissed by the SIAC in both an open and closed judgment. Despite a number of appeals, the decision to deport remained extant at the time of the instant proceedings.

The SIAC exercised its powers under s 3(1) and para 1(4) to Sch 3 of the Special Immigration Appeals Commission Act 1997 to release the claimant on bail. From April 2008, he remained on bail other than two short periods of detention by the secretary of state. In June 2009, some of his bail conditions were varied, but his 18 hour curfew was maintained.

He appealed against that order on the ground that his bail curfew deprived him of liberty and because art 5(4) of the European Convention on Human Rights entitled him to be told at least the gist of the undisclosed national security reasons that had been relied upon by the secretary of state. His application was allowed, the Divisional Court holding that bail conditions amounting to a denial of liberty based upon undisclosed allegations contravened art 5(4) of the Convention ([2011] All ER (D) 270 (Feb)). In April 2011, his bail conditions were amended by the SIAC reducing his curfew to 16 hours.

In May, the SIAC conducted a further bail hearing to determine, as preliminary issues, whether the varied bail conditions amounted to a deprivation of liberty under art 5(4) of the Convention. The claimant also contended that the SIAC proceedings were proceedings within art 6(1) of the Convention. The SIAC decided that the varied bail condition did not result in the deprivation of the claimant's liberty for the purpose of art 5(4) and that the bail proceedings before the SIAC were not proceedings to which art 6(1) of the Convention applied. The claimant sought judicial review of both of those decisions of the SIAC. He was granted permission to challenge only the art 6(1) issue.

The issue for determination was whether art 6(1) of the Convention applied to bail proceedings before the SIAC. The application would be dismissed.

Decisions regarding the entry, stay and deportation of aliens did not concern civil rights and obligations within the meaning of art 6(1) of the Convention. That applied to immigration measures which did not, or did not yet, result in proceedings but might result in immigration detention (see [39] of the judgment).

SIAC bail proceedings only took place in the direct context of deportation proceedings or immigration measures. They were an alternative to or relaxation of immigration detention and were directly in aid of contemplated deportation, conditioned on the person's future attendance before an immigration officer. SIAC bail proceedings might affect a person's civil and human rights, but did not determine them in the sense that the relevant issue at stake was the question of deportation.

The bail proceedings were properly to be characterised as interim proceedings in the deportation proceedings or proceedings ancillary to the deportation proceedings. Article 6(1) of the Convention did not apply to them. Bail proceedings did not effectively determine the civil right or obligation at stake, which in the context had to mean the right at stake in the deportation proceedings.

Bail proceedings might affect the claimant's common law and human rights but the bail proceedings were part of a discharge of public functions, albeit with an impact on the civil rights of the individual. That was not just a close link, but an inseparable link between the deportation proceedings and the bail proceedings. However, the decision in the bail proceedings was not in any way dispositive of the determination of the deportation proceedings, which in any event did not concern civil rights within art 6(1) of the Convention (see [39] of the judgment).

The SIAC had reached the correct conclusion for the correct reasons (see [39] of the judgment).

Maftah v Secretary of State for the Foreign Office and Commonwealth Affairs [2011] All ER (D) 120 (Apr) applied; R (on the application of G) v Governors of X School [2011] All ER (D) 220 (Jun) applied; Maaouia v France (Application 39652/98) 9 BHRC 205 considered; Micallef v Malta (Application 17056/06) (2009) 28 BHRC 31 considered.

Hugh Southey QC and Simon Cox (instructed by Luqmani Thompson and Partners) for the claimant. Robin Tam QC (instructed by the Treasury Solicitor) for the SIAC.