Case No: QBACF/2001/0052/C
Neutral Citation Number: [2001] EWCA Civ 795
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL  DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Ouseley J.
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 25th May 2001
B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE BUXTON
and
LORD JUSTICE JONATHAN PARKER
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	R

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	SECRETARY OF STATE FOR THE HOME DEPARTMENT

Ex Parte

SEZEK	Respondent

Appellant	

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(Transcript of the Handed Down Judgment of
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Miss Lisa Giovanetti (instructed by the Treasury Solicitor for the Respondent)
Mr. Malcolm Bishop Q.C. and Mr. Osama Daneshayer (instructed by Messrs T. Osmani and Co. of London E11   for the Appellant)

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Judgment
Lord justice Peter Gibson: (giving the judgment of the court): 
1.	This is a renewed application for bail pending the hearing fixed for 3 July of an appeal by the applicant, Mehmet Sezek, from the decision of Ouseley J. dismissing Mr. Sezek’s application for judicial review.  By that application Mr. Sezek challenged a decision of the Secretary of State refusing to revoke a deportation order made against him.  We have thought it right to sit as a full court of three Lord Justices because of our concerns over jurisdiction on such a bail application.
2.	The background facts, shortly stated, are these. Mr. Sezek is a Turkish national.  On 2 July 1976 he was admitted to the United Kingdom as a visitor.  On 11 July 1983 he was granted indefinite leave to remain.  He has worked in the restaurant business either as a proprietor or as a waiter.  He is married and has an adult son and daughter.  He and his wife are owners in equal shares of a house in Enfield, subject to a mortgage, and have been for 20 years.  His son has British nationality by birth.  His wife and daughter applied for, and were granted, British nationality in 1991.  Mr. Sezek also applied for British nationality at that time.  But his application was refused because he failed to disclose that on 2 October 1985 he was convicted of driving while disqualified and of driving without insurance.  On 24 March 1994 Mr. Sezek was convicted of smuggling 34 kilograms of heroin and sentenced to 16 years’ imprisonment.  No recommendation for deportation was made by the Crown Court.  But on 9 November 1994 the Secretary of State signed a notice that he was minded to deport Mr. Sezek pursuant to the Immigration Act 1971 (“the Act”) on the basis that his continued presence in the United Kingdom was not conducive to the public good.  That notice was served on Mr. Sezek on 31 January 1995.  He appealed to the Immigration Appeal Tribunal, but on 31 January 1996 his appeal was dismissed.  Leave to appeal was refused by that Tribunal and subsequently by this court.
3.	A deportation order was made on 22 April 1999.  This included authorisation for Mr. Sezek to be detained pursuant to para. 2(3) of Sch 3 to the Act.  That order was served on him on 18 May 1999.  Representations were made on his behalf that the deportation order should be revoked.  But by the decision dated 27 October 1999 which is the subject of the judicial review proceedings the Secretary of State refused to revoke the deportation order.  Permission to move for judicial review was granted by Harrison J. on 26 September 2000, but at the substantive hearing Ouseley J. on 21 December dismissed Mr. Sezek’s application and refused permission to appeal.  Permission was however given by this court (Mantell L.J.) but limited to a single point.
4.	By an early release decision dated 27 March 2001 notice was given that Mr. Sezek, who was then in an open prison, should be released on licence and deported on 4 April.  But he was not deported because of his pending appeal to this court.  Since 4 April he has been detained under para. 2(3) in a high security prison.  He applied to an adjudicator for bail but that was refused on 17 April.  The adjudicator has no jurisdiction to grant bail in para 2(3) cases.  Mr. Sezek then applied to this court for bail, but that was refused on paper by Buxton L.J.
5.	On this renewed application we were concerned as to whether this court had jurisdiction to grant bail.  The Bail Act 1976 is only expressed to apply to criminal cases, and Mr. Sezek is detained under the Act, not by reason of his criminal sentence in 1994.  The question of bail did not arise before Ouseley J. so that this court must exercise an original jurisdiction if it is to accede to the application.  Mr. Sezek’s real complaint is with the decision of the Secretary of State to detain him under para. 2 (3).  That decision has not been challenged by judicial review.  It is not in dispute that when a person is detained under para. 2 (3), that detention can be challenged by a habeas corpus application.  But there has been no such application.  Instead Mr. Sezek has opted for an application for bail, his counsel, Mr. Bishop Q.C., arguing that the principles of the Bail Act should apply by analogy.  Thus he submits that by analogy with s. 4 of that Act, Mr. Sezek must be granted bail unless his case comes within an exception in Sch. 1 to that Act.  The most relevant exception would appear to be that in para. 2 (a), viz. “if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would -
(a)  fail to surrender to custody ....”
6.	The Secretary of State through his counsel, Miss Giovanetti, accepts that this court has power to accede to an application for bail in these circumstances.  Moreover, she has drawn our attention to two authorities in each of which the acceptance by the Secretary of State that there was power for this court to grant bail was supported by this court.
7.	 In R. v Secretary of State for the Home Department, ex p. Turkoglu [1988] Q.B. 398 an immigrant, who had been refused judicial review by the High Court, applied for bail pending an appeal.  But that application was also refused by the High Court judge.  The immigrant appealed.  The Secretary of State invited this court to grant bail, on the footing that the court could, in so doing, impose a condition of sureties which the Secretary of State has no power to do under the Act.  Sir John Donaldson M.R., with whom Croom-Johnson and Bingham L.JJ. agreed, said that that raised the whole question of the power of courts to grant bail in immigration cases.  He reviewed earlier authorities, including R. v Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477, in which he had said (obiter) at pp. 485 - 6 that there was an inherent jurisdiction to grant bail but that in the light of the statutory powers available to the Secretary of State and to adjudicators it would only be in exceptional cases that it should be exercised and only if leave to apply for judicial review had been granted.  The Master of the Rolls, in Turkoglu at p. 400, said that bail was to be regarded in civil proceedings, as in criminal proceedings, as ancillary to some other proceedings.  He said at p. 401 that the High Court if seised of proceedings could grant or refuse bail.  He continued:
“As far as the Court of Appeal is concerned, it has jurisdiction to entertain a direct appeal against any refusal or grant of bail by the High Court in whatever proceedings it is made, that right and duty coming straight from section 16 of the [Supreme Court Act 1981].  In addition, it has inherent jurisdiction to grant bail in proceedings originating in this court, which in practice means on a renewed application for leave to apply for judicial review, or, of course, if this court went on to hear the substantive application ....”
8.	The present case does not fall precisely within the circumstances envisaged by the Master of the Rolls since he appears to have had in mind the original jurisdiction then exercised by this court under R.S.C. O.59 r.14(3).  However, it is highly likely that he would have seen the same approach as applying to a case such as the present, where the underlying proceedings are an appeal rather than an original application.
9.	The second case to which Miss Giovanetti referred was Vilvarajah v Secretary of State for the Home Department [1987] Imm. A.R. 457.  In that case two asylum seekers were refused leave to enter the United Kingdom.  In proceedings for judicial review they obtained the quashing of that refusal, but were detained pending the examination of their claims to be refugees.  They applied to this court for bail.  At p. 459 Sir John Donaldson M.R. noted that the Secretary of State accepted that there was jurisdiction in the court to grant bail.  He drew a distinction between the time when a person was being detained pending examination of his case and the time when a person was being detained following a decision that he be required to leave the country.  The Master of the Rolls, with whom Neill and Ralph Gibson L.JJ. agreed, said at p. 459:
“In cases where the adjudicator has no jurisdiction because a decision has been reached not to grant admission at all, the jurisdiction on the authorities is I think to be exercised as being in the nature of a judicial review of the Secretary of State’s decision not to grant bail pending the person leaving the country.  There is a class of case, of which we have had one example in the past, where in those circumstances the Secretary of State may indeed welcome the grant of bail by the court, because, unlike the adjudicator, he has no power to impose a requirement of sureties in connection with the grant of temporary admission.”
The Master of the Rolls may well have been referring in the latter sentence to Turkoglu, decided only 5 months earlier.  There is no other reference to that case in his judgment, but he must, we think, be taken to have thought that there was no inconsistency between the view earlier expressed of an inherent jurisdiction and the view “on the authorities” that the jurisdiction was “in the nature of a judicial review of the Secretary of State’s decision not to grant bail.”
10.	The Master of the Rolls went on to say that the cases which he had addressed in the passage cited were not the case before him.  He considered the reasons given by the Secretary of State for not granting temporary admission.  He said at p. 460 that he could see no error in principle in the decision of the Secretary of State and refused bail.
11.	Mr. Bishop sought initially to persuade us that there was jurisdiction to grant bail by reason of the effect of Art. 5 of the European Convention on Human Rights on Sch. 3 to the Act.  Art. 5 provides (so far as material):
“1.  Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
....
(f)  the lawful .... detention .... of a person against whom action is being taken with a view to deportation ....
....
4.  Everyone who is deprived of his liberty by .... 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.”
12.	Mr. Bishop referred us to E v Norway (1990) 17 EHRR 30 at p. 49 where the European Court of Human Rights held that a detained person was entitled to a review of the lawfulness of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restriction placed on Art. 5(1).  He acknowledged that Sch. 3 to the Act did not explicitly confer power to grant bail to a person detained pursuant to an administrative decision (as distinct from the power, conferred by para. 2 (1A) of Sch. 3 on an appellate court on an appeal from a court which has recommended deportation of a person convicted before it, to direct release without setting aside the recommendation).  But he asked the court to read Sch. 3 so as to be compatible with Mr. Sezek’s Convention right under Art. 5(1) by holding that the Schedule, including the appeal provisions, applies to persons detained by administrative decision.  He asserted that Mr. Sezek’s detention would not be compatible with Art. 5 (1)(f) unless it was established that detention was the only available way of preventing him absconding.
13.	We are unable to accept those submissions which seem to us to proceed on an erroneous view of the effect of Art. 5.  From the right to liberty and security is expressly excepted the case of a person against whom action is being taken with a view to deportation.  Art. 5(1)(f) has been construed restrictively, as the jurisprudence relating to that provision demonstrates (see, for example, Grosz, Beatson and Duffy: Human Rights (2000) pp. 208 - 210).  There is nothing in the Convention nor any authority to support Mr. Bishop’s assertion that Mr. Sezek’s detention is incompatible with Art. 5 (1)(f) if other ways of preventing him absconding are available.  It is impermissible to torture Sch. 3 into conferring the same right on this court in the circumstances of this case as is conferred on a criminal appeal court in the different circumstances specified in para. 2 (1A).  In the present case it cannot be said that the exercise by the Secretary of State of his power under para. 2 (3) to detain Mr. Sezek was not in accordance with a procedure prescribed by law, although it is always open to the person so detained to seek judicial review of that exercise.
14.	Mr. Bishop in a supplemental skeleton submitted that this court has inherent jurisdiction to grant bail.  He also relied on s. 15 (3) Supreme Court Act 1981, which provides:
“For all purposes of or incidental to -
(a) the hearing and determination of any appeal to the civil division of the Court of Appeal
....
the Court of Appeal shall have all the authority and jurisdiction of the court .... from which the appeal was brought.”
He said that as the High Court had inherent power to grant bail, as was held in Turkoglu, as incidental to a judicial review application, so too does the Court of Appeal on an appeal in the judicial review proceedings.
15.	Miss Giovannetti agreed that this court had power to grant bail, but was minded to argue, picking up the literal wording of the observations of the Master of the Rolls in Vilvarajah to which we have referred in paragraph 9 above, that the jurisdiction was one of review only.  For reasons that we will shortly develop, we do not agree with that submission.  However, Miss Giovanetti also accepted that, because of the human rights context of the enquiry, the standard of review should be the “enhanced Wednesbury” standard of anxious scrutiny, which is expounded in well-known authorities such as R v Ministry of Defence, ex p. Smith [1996] QB 517.  In the event, therefore, it is unlikely that the application of that standard of review will often lead to a different outcome from that which would be achieved if the court exercised an original decision, bearing in mind the considerations that we set out later in this judgment.
16.	We own to having some doubts as to whether there is room for an inherent jurisdiction to grant bail in relation to a civil appeal in judicial review proceedings when Parliament has given the Secretary of State the power to detain and the substance of the complaint is the exercise of that power.  But in the light of the authorities we accept that the High Court has the power in judicial review proceedings to make ancillary orders temporarily releasing an applicant from detention and that on an appeal in those proceedings this court by virtue of s. 15 (3) of the 1981 Act can make the like order.  In our judgment this court is exercising an original jurisdiction and it is not judicially reviewing the decision by the Secretary of State.  But given that the Secretary of State is designated by the Act as the person to decide whether a person against whom a deportation order is in force should be detained and given his experience in this area, it is plainly right that great weight should be given to the fact that the Secretary of State has decided that person should be detained and to the reasons why he has opposed the release of that person.  The language used by Sir John Donaldson in Vilvarajah that the jurisdiction is “in the nature of a judicial review” may reflect those considerations.
17.	It is also right in this context to take full note of the policy of the Secretary of State.  In a document headed “Reasons for Continued Detention/Opposing Bail”, this is said:
“Home Office policy is to grant temporary release whenever possible and to authorise detention only where there is no alternative.  The main considerations will normally be:
whether the person is likely to comply with any restrictions imposed upon him, including any arrangements for removal; and
the likelihood of removal within a reasonable timescale so that people are not detained for longer than necessary and best use is made of the limited detention space available. ”
18.	In that document the Secretary of State took note of the fact that Mr. Sezek had close family here who supported his application for bail and his wish to remain in the United Kingdom, that there is a stable address for Mr. Sezek to be returned to (his Enfield home) and an offer of employment should he be released, that members of Mr. Sezek’s family are willing to stand surety for him including his wife who is prepared to stand surety for her half share of the Enfield home, and there is some valuation evidence that that share is worth £40,500.  But among the points taken by the Secretary of State is that there may in practice be difficulty in obtaining the recognizance.  The Secretary of State also noted Mr. Sezek’s claim that up to 50 more sureties could be available.
19.	The Secretary of State said that the question of the likelihood that Mr. Sezek would comply with any restrictions was paramount.  He pointed to the fact that Mr. Sezek is almost at the end of the appeal process, with the appeal listed for 3 July.  He continued:
“Mr. Sezek is fully aware of the gravity of his situation.  In the light of this the Secretary of State considers that there is a very serious risk that he will not comply with bail conditions imposed on him.
Furthermore, Mr. Sezek has shown a disregard for UK law.  He has been convicted of driving while disqualified and driving without insurance; he has attempted to obtain British nationality by deception; and has also been convicted of a serious drugs offence.  The Secretary of State considers that Mr. Sezek’s character and conduct whilst in the United Kingdom is unsatisfactory.  The Secretary of State considers that Mr. Sezek’s conviction for importing 34 Kilos of a class A drug, of a street value of over £4 million pounds, as a very serious offence.  He considers trafficking Class A drugs as one of the most serious offences, which often has an international dimension.  Immigration control, including detention of offenders in order to effect removal, plays an important part in the fight against drug trafficking.  Moreover, the nature and scale of this even suggests that Mr. Sezek has contacts who might be willing and able to assist him in relocating and maintaining himself without coming to the attention of the authorities.  In this context the Secretary of State has taken into account that there are periods prior to Mr. Sezek’s conviction in respect of which it is unclear by what means he was supporting himself and his family.
The Secretary of State considers that Mr. Sezek would not comply with any conditions imposed upon him, particularly any arrangements for removal, should his appeal fail.”
20.	The Secretary of State said that the likelihood of Mr. Sezek’s removal within a reasonable timescale remained realistic, that detention would be kept to a minimum and that his continued detention was considered necessary to effect his removal.
21.	Mr. Bishop submits that the Secretary of State is not complying with his own policy.  There was, he says, an obvious alternative to detention in that Mr. Sezek should be permitted to live with his family in what has been the family home for 20 years, with daily reporting conditions.  He points to the fact that Mr. Sezek has been a model prisoner, who had been transferred to an open prison but had not absconded from there, and had been given early release.  He submits that the likelihood of Mr. Sezek complying with bail conditions and surrendering when necessary is overwhelming.  He relies on the offers not only by Mr. Sezek’s family but also of many in the North London Turkish community as showing that they are satisfied that Mr. Sezek would not let them down by absconding.  He says that if he absconds, his appeal would not be able to proceed, he would be subject to recall to prison and there would be no hope that his deportation order would be revoked.  Accordingly he argues that it is unlikely in the extreme that he would abscond.  He points to Mr. Sezek’s excuse for failing to disclose his convictions when applying for British nationality (viz., that he did not appreciate that criminal convictions included road traffic offences) and says that what occurred so long ago cannot sensibly be a ground for denying him bail now.
22.	We acknowledge that the points which Mr. Bishop takes carry weight, but on balance we do not think that they outweigh the points which are taken by the Secretary of State.  The sureties offered, whilst a factor to be taken into account, do not constitute a conclusive factor, particularly as there are uncertainties as to whether the amounts offered would in practice be recoverable.  We attach considerable importance to the opinion of the Secretary of State that Mr. Sezek’s continued presence in the United Kingdom is not conducive to the public good and that there is a real risk that he will abscond if not detained.  With Mr. Sezek’s appeal now only 6 weeks away, it is surprising that this application is renewed before us, and we did not find convincing Mr. Bishop’s explanation that, if successful, it would give the family the opportunity to make plans for the future.
23.	These are the reasons which have led us to conclude that this application should be refused.

ORDER: Application dismissed with costs.
(Order does not form part of approved Judgment)