Removal and Detention Section 34: Detention pending deportation
159.Schedule 3 to the Immigration Act 1971 deals with deportation. Where someone has been recommended for deportation by a court under section 3(6) of the Act, paragraph 2(1) of Schedule 3 specifies that that person shall be detained pending the signing of the deportation order unless (a) he is already detained by virtue of the sentence or order of any court, or (b) he is released on bail by any court having power so to release him, or (c) the court which made the recommendation (or an appeal court) or the Secretary of State directs that he is to be released, or he is granted bail under paragraph 2(4A) of that Schedule. Similarly, where someone has been notified that the Secretary of State intends to make a deportation order against him under section 3(5) of the Act, paragraph 2(2) allows that person to be detained unless he is already detained by virtue of the sentence or order of a court or released on bail by a court having the power to release him.
160.Although it may be implicit that it is only bail granted by a court which is both aware of and involved in the deportation process which affects the power to detain under these paragraphs, on the face of it, it could mean bail granted by any court. This would mean that bail granted by a court which was unaware of the impending deportation action, or perhaps was granted before deportation came into prospect, could prevent detention pending the making of a deportation order if this was considered appropriate.
161.Section 34 amends paragraphs 2(1) and 2(2) to remove the reference to the grant of bail by a court. A person who is detained under Schedule 3 will continue to be able to apply for bail from the Immigration Service or from the appropriate immigration appellate body by virtue of paragraph 2(4A) of the Schedule which came into force in February 2003.