In Kaitey v Secretary of State for the Home Department  EWHC 1861 (Admin), the High Court has confirmed that the power to set immigration bail conditions exists even when a person cannot be lawfully detained in compliance with the Hardial Singh principles. This is an unsurprising result, since that was exactly the intention of Parliament when it passed the Immigration Act 2016 and replaced the old bail legislation.
Section 61 of the Immigration Act 2016 was a response to the decision of the Court of Appeal in B v Secretary of State for the Home Department  EWCA Civ 445 (later upheld by the Supreme Court). In that case it was held that the old bail provisions in the Immigration Act 1971 only provided a power to grant bail to (and so set bail conditions on) someone who was lawfully detained.
For someone who was liable to be detained, but could not actually be lawfully detained because of the Hardial Singh principles, the only option available to the Home Office was to grant them temporary admission (in line with the House of Lords decision in R (Khadir) v Secretary of State for the Home Department  UKHL 39).
Section 61 replaced the temporary admission system with a single power to grant immigration bail for anyone who is liable to be detained. For the Home Office, this fixed the problem caused by B (Algeria) and allowed it to impose bail conditions lawfully.
In light of that apparently conclusive legislative history, Mr Keitey’s lawyers sought to argue that the court could disregard it entirely. Mrs Justice Laing dismissed that suggestion:
The purpose of an Act is normally to make changes in the law. A court cannot judge the mischief which a provision is intended to remedy unless it knows the previous state of the law, the defects found in the law and the facts which caused Parliament to pass the legislation.
Having stated how to read legislation, the judge concluded that section 61 had been passed to reverse the Court of Appeal decision in B (Algeria):
I also consider that it is absolutely clear that immigration bail is not ‘ordinary’ bail, precisely because it is available, as was temporary admission, when a person is liable to detention (rather than being detained), and because it is available, as was temporary admission, when a person can no longer be detained (whether as a matter of law, or in practice), if that person is liable to detention under one of the listed provisions (cf Khadir). In that respect, it is absolutely clear from the language Parliament used that Parliament intended to reverse the decision of the Court of Appeal in B (Algeria).
It is difficult to disagree with Laing J’s reasoning or conclusion. The only way for the claimant to succeed would be to end up in front of the Supreme Court and convince it to depart from the decision in Khadir on the correct interpretation of “liable to be detained”. Some Anisminic-inspired administrative law purists might query the existence/exercise distinction drawn in Khadir, but it is such a useful tool for the judiciary that they are unlikely to do away with it.