Court of Appeal rules on Secretary of States power to detain individuals on “immigration bail”


Re: The Queen (on the application of Seth Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875.

The Court of Appeal unanimously dismissed this appeal concerning whether the Secretary of State has the power to place a person on bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 in circumstances where it would be unlawful to detain them.  According to the evidence before the Court there may be more than 90,000 people who are currently on “immigration bail”, as it is described in the 2016 Act, some of whom (like this Appellant) cannot lawfully be detained.

The High Court decided that there is a power to bail a person in those circumstances.  The Judge granted permission to appeal, recognising that this case raises an important point of statutory interpretation, which could affect a large number of people.

The appellant raised four grounds of appeal, firstly that the judge erred in not interpreting the power to grant immigration bail as being predication on its being lawful to exercise the power to detain in accordance with the principles in Hardial Singh, with the consequence that the phrase “liable to detention” means “liable to lawful detention”. Secondly, that they failed to consider whether “some prospect of removal”. Thirdly, the Judge erred in rejecting the alternative argument that there are implied limits, similar to the Hardial Singh principles, on the exercise of the power to grant bail. Finally, that the Judge erred in not holding that the absence of a lawful bail power would compel the grant of some form of leave to be in the UK.


Eleanor Mitchell was involved in this case.