R Asif Raza (Pakistan) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Longmore,Lord Justice Jackson,Lord Justice VOS
Judgment Date29 July 2016
Neutral Citation[2016] EWCA Civ 807
Date29 July 2016
Docket NumberCase No: C2/2016/0856 & C1/2016/0856(A)

[2016] EWCA Civ 807

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Right Honourable Lord Justice Longmore

The Right Honourable Lord Justice Jackson

and

The Right Honourable Lord Justice Vos

Case No: C2/2016/0856 & C1/2016/0856(A)

Between:
The Queen on the application of Asif Raza (Pakistan)
Appellant
and
The Secretary of State for the Home Department
Respondent

Mr Chris Buttler (instructed by Duncan Lewis Solicitors) for the Appellant

Miss Samantha Broadfoot (instructed by Government Legal Department) for the Respondent

Mr Sarabjit Singh (as Amicus Curiae)

Hearing dates: 26 th July 2016

Approved Judgment

Lord Justice Longmore
1

If bail is granted by the First Tier Tribunal on conditions, how long do these conditions last and does the Secretary of State or her immigration officers have authority to vary or relax those conditions? Those are the central questions in this appeal from the Upper Tribunal (Immigration and Asylum Chamber) judgment given by McCloskey P and UTJ Storey signed by them on 16 th January and 5 th February 2016 respectively, handed down by UTJ Storey on the latter date, and published on 24 th February 2016.

Background Facts

2

The appellant, Asif Raza ("Mr Raza") is a Pakistani national who entered the United Kingdom illegally in January 2005. His initial asylum claim was unsuccessful and an appeal was dismissed in June 2007. He did not return but made subsequent applications for leave to remain from 2009 onwards but these were similarly rejected by the Secretary of State, during which time Mr Raza continued to reside in the UK illegally. In December 2010 he began a relationship with Victoria Howe, a British citizen. They celebrated an Islamic marriage ceremony on 19 th October 2014.

3

On 28 th May 2014, almost 7 years after his asylum claim had been dismissed, immigration officers made an enforcement visit. The Secretary of State then detained Mr Raza as an immigration offender pursuant to paragraph 16(2) of the schedule 2 of the Immigration Act 1971 either because he was an illegal entrant or because his application for leave to remain had been refused. On 7 th October 2014, the First-tier Tribunal ("FTT") granted Mr Raza immigration bail subject to the following conditions:-

"Primary Condition

To appear before Chief Immigration Officer

At North Shields (Tyne and Wear) Reporting Centre, Northumbria House, Norfolk Street, North Shields NE30 1LN.

On Wednesday 15 th October 2014 at 10 a.m.

And any other place on any other date and time that may be ordered.

Secondary Conditions

1. The applicant shall live and sleep at the address set out above [14 The Pines, Park Road, Newcastle upon Tyne NE4 7ET].

2. The applicant shall report to the UK Border Agency. At: North Shields (Tyne and Wear) Reporting Centre, Northumbria House, Norfolk Street, North Shields NE30 1LN.

On every Wednesday

Between the hours of 10 a.m. and 4 p.m. Beginning on Wednesday 15 th October 2014.

3. Bail is granted subject to (i) the applicant cooperating with the arrangement for electronic monitoring ("tagging") as set out in s 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and (ii) the UK Border Agency arranging electronic monitoring within two working days of this grant of bail. If electronic monitoring is not effected within two working days, then the applicant is to be released on condition that he complies with reporting conditions as stated above."

4

Mr Raza was released from immigration detention on 9 th October 2014 and on his first report may or may not have been informed by the reporting officer on behalf of the Secretary of State that he was required to stay at the designated address between 7:00 p.m. and 7.00 a.m. every day. There is no written record of any notification of this further condition having been given to Mr Raza because, according to Miss Broadfoot who appeared for the Secretary of State, his bail file has gone missing.

5

Mr Raza must at some stage have reported to Northumbria House and have been notified of the curfew because he subsequently applied for a variation of his bail conditions so that he could attend prayers in the evening. FTT Judge Clayton refused that application on 16 th February 2015. Mr Raza had already begun to make several unanswered requests to the Secretary of State to vary the curfew order and/or delete the requirement to wear the electronic tag with which he had been fitted. He also made a further application to the First Tier Tribunal which came before a hearing on 14 th July 2015. The FTT declined to consider a variation on the grounds that it lacked jurisdiction and that the appropriate body was the Chief Immigration Officer.

6

On 7 th August 2015, Mr Raza filed a judicial review claim form, seeking to challenge, inter alia, the legality of his tagging and curfew, claiming that his inability to attend evening prayers at his local mosque amounted to unjustified indirect discrimination for reasons relating to religion, contrary to sections 19 and 29 of the Equality Act 2010. Further reliance was placed upon Articles 8 and 9 of the European Convention on Human Rights ("the ECHR") and Article 10 of the Charter of Fundamental Rights of the European Court.

7

The claim was transferred to the Upper Tribunal ("UT") and a rolled-up hearing was listed for 6 th October 2015 but was subsequently adjourned, for want of time, to 12 th October 2015. On that date the matter came before the Upper Tribunal. By this time the Secretary of State had, on 9 th October 2015, decided to discharge Mr Raza's conditions of bail and agreed to remove Mr Raza's electronic tag. She wrote to Mr Raza saying "the conditions of your bail are hereby varied to cease immediately". The parties came to the hearing on 12 th October 2015 having signed a consent order that Mr Raza had leave to withdraw his claim for judicial review. Importantly he reserved his right to claim damages for breach of the Equality Act and Articles 9 and 10 of the Convention.

8

Following exchanges with the parties, the UT considered that it would, notwithstanding the agreement reached by the parties, determine the issues raised in the claim owing to their "unusual and important nature" and the likelihood of the authority of the Secretary of State to relax bail conditions arising in future cases.

Legislative Framework

9

The relevant provisions of schedule 2 to the Immigration Act 1971 are:-

" Detention of persons liable to examination or removal

16

(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.

(1A) A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending –

a) completion of his examination under that paragraph; and

b) a decision on whether to cancel his leave to enter.

(1B) A person who has been required to submit to further examination under paragraph 3(1A) may be detained under the authority of an immigration officer, for a period not exceeding 12 hours, pending the completion of the examination.

(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending –

a) a decision whether or not to give such directions;

b) his removal in pursuance of such directions.

Temporary admission or release of persons liable to detention

21.

(1) A person liable to detention under paragraph 16(1), (1A) or (2) above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.

(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.

(2A) The provisions that may be included in restrictions as to residence imposed under sub-paragraph (2) include provisions of such a description as may be prescribed by regulations made by the Secretary of State.

(2B) The regulations may, among other things, provide for the inclusion of provisions –

a) prohibiting residence in one or more particular areas;

b) requiring the person concerned to reside in accommodation provided under section 4 of the Immigration and Asylum Act 1999 and prohibiting him from being absent from that accommodation except in accordance with the restrictions imposed on him.

(2C) The regulations may provide that a particular description of provision may be imposed only for prescribed purposes.

(2D) The power to make regulations conferred by this paragraph is exercisable by statutory instrument and includes a power to make different provision for different cases.

(2E) But no regulations under this paragraph are to be made unless a draft of the regulations has been before Parliament and approved by a resolution of each House.

(3) Sub-paragraph (4) below applies where a person who is at large in the United Kingdom by virtue of this paragraph is subject to a restriction as to reporting to an immigration officer with a view to the conclusion of his examination under paragraph 2 or 2A above.

(4) If the person fails at any time to comply with that restriction –

a) an immigration officer may direct that the person's examination … shall be treated as concluded at that time; but

b) nothing...

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