In Kaitey v Secretary of State for the Home Department  EWHC 1861 (Admin), handed down on 13 July 2020, Elisabeth Laing J. held that the power to impose conditional immigration bail on a person under Schedule 10 to the Immigration Act 2016 (“the 2016 Act”) is not predicated on a power to lawfully detain that person for immigration purposes.
The Supreme Court in B (Algeria) v Secretary of State for the Home Department  AC 418 held that the previous immigration bail power under the Immigration Act 1971, which has now been replaced by the 2016 Act, did depend on it being possible to lawfully detain. The Supreme Court held that “the clearest possible words” would be required to achieve the contrary result.
In Kaitey, the High Court has now found that the new regime under the 2016 Act does contain the “clearest possible words”. Paragraph 1(5) of Schedule 10 to the 2016 Act provides that “a person may be granted and remain on immigration bail even if the person can no longer be detained, if … the person is liable to detention”.
The judgment is available here.