Illegal Migration Act 2023

Prospective

13 Powers to grant immigration bail U.K.

(1) Schedule 10 to the Immigration Act 2016 (immigration bail) is amended in accordance with subsections (2) to (4).

(2) In paragraph 1 (power to grant immigration bail)—

(a) in sub-paragraph (1)(a), for “or (2)” substitute “, (2) or (2C)”,

(b) in sub-paragraph (3)(a), for “or (2)” substitute “, (2) or (2C)”, and

(c) in sub-paragraph (9), after “bail)” insert “and paragraph 3A (legal proceedings)”.

(3) In paragraph 3 (exercise of power to grant immigration bail)—

(a) in sub-paragraph (2), after paragraph (e) insert—

“(eza) whether the Secretary of State has a duty to make arrangements for the removal of the person from the United Kingdom under section 2(1) of the Illegal Migration Act 2023,”;

(b) after sub-paragraph (3) insert—

“(3A) A person who is being detained under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 (detention of unaccompanied child for purposes of removal) must not be granted immigration bail by the First-tier Tribunal until after the earlier of—

(a) the end of the period of 28 days beginning with the date on which the person’s detention under any provision of paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 or section 62(2A) of the Nationality, Immigration and Asylum Act 2002 began, and

(b) the end of the period of 8 days beginning with the date on which the person’s detention under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 began.

(3B) A person who is being detained under—

(a) paragraph 16(2C)(a), (b), (c) or (d)(i) to (iii) of Schedule 2 to the Immigration Act 1971, or

(b) section 62(2A)(a), (b), (c) or (d)(i) to (iii) of the Nationality, Immigration and Asylum Act 2002,

must not be granted immigration bail by the First-tier Tribunal until after the end of the period of 28 days beginning with the date on which the person’s detention under paragraph 16(2C) of that Schedule or section 62(2A) of that Act began.

(3C) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the periods referred to in sub-paragraphs (3A) and (3B) begin with the date on which the person was first detained under the relevant provisions of either of those Acts.”

(4) After paragraph 3 insert—

“Legal proceedings

3A (1) This paragraph applies in relation to—

(a) a decision to detain a person under the authority of an immigration officer under paragraph 16(2C) of Schedule 2 to the Immigration Act 1971,

(b) a decision to detain a person under the authority of the Secretary of State under section 62(2A) of the Nationality, Immigration and Asylum Act 2002, and

(c) where a person is being detained under a provision mentioned in paragraph (a) or (b), a decision of the Secretary of State to refuse to grant immigration bail to the person.

(2) In relation to detention during the relevant period, the decision is final and is not liable to be questioned or set aside in any court or tribunal.

(3) In particular—

(a) the powers of the immigration officer or the Secretary of State (as the case may be) are not to be regarded as having been exceeded by reason of any error made in reaching the decision;

(b) the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.

(4) Sub-paragraphs (2) and (3) do not apply so far as the decision involves or gives rise to any question as to whether the immigration officer or the Secretary of State is acting or has acted—

(a) in bad faith, or

(b) in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.

(5) Sub-paragraphs (2) and (3) do not affect any right of a person to—

(a) apply for a writ of habeas corpus, or

(b) in Scotland, apply to the Court of Session for suspension and liberation.

(6) In this paragraph—

• “decision” includes any purported decision;

• “relevant period” means the period of 28 days beginning with the date on which the person’s detention under the provision mentioned in sub-paragraph (1) began;

• “the supervisory jurisdiction” means the supervisory jurisdiction of—

  (a)

  the High Court, in England and Wales or Northern Ireland, or

  (b)

  the Court of Session, in Scotland.”

(5) In Schedule 3 to the Special Immigration Appeals Commission Act 1997 (bail: modifications of Schedule 10 to the Immigration Act 2016), in paragraph 3(a), after “(3),” insert “(3A), (3B),”.

Commencement Information

I1 S. 13 not in force at Royal Assent, see s. 68(1)