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R (on the application of Raza) v Secretary of State for the Home Department

Judgment Cited authorities 41 Cited in 10 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeMcCloskey J,The Honourable Mr Justice McCloskey
Judgment Date16 January 2016
Neutral Citation[2016] UKUT 132 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date16 January 2016
Categories

[2016] UKUT 132 IAC

Upper Tribunal

Immigration and Asylum Chamber

Judicial Review Decision Notice

The Honourable Mr Justice McCloskey, President

Upper Tribunal Judge Storey

The Queen on the application of Asif Raza
Applicant
and
Secretary of State for the Home Department
Respondent

On this application for permission to apply for judicial review and following consideration of the documents lodged by the parties and having heard Mr C Buttler, of counsel, instructed by Duncan Lewis Solicitors and Mr Z Malik, of counsel, instructed by the Government Legal Department at a hearing conducted at Field House, London on 12 October 2015.

And having considered the further written submissions of both parties completed on 10 December 2015.

R (on the application of Raza) v Secretary of State for the Home Department (Bail — conditions — variation — Article 9 ECHR) IJR

  • (i) Presidential Guidance Note No 1 of 2012 “Bail Guidance for Judges Presiding over Immigration and Asylum Hearings” is an instrument of guidance and not instruction. The guidance should, however, normally, be followed and good reason is required for not doing so.

  • (ii) The First-tier Tribunal (“FtT”) is empowered to adjudicate on applications to vary the terms of its bail orders.

  • (iii) The FtT retains exclusive power to vary any of its bail orders during their lifespan. The Chief Immigration Officer has no power to interfere with such orders or make any other order in such circumstances.

  • (iv) In cases where there is no appeal pending, an application for bail can be made to either the FtT or the Chief Immigration Officer.

  • (v) While every case will be fact sensitive, a curfew and electronic monitoring restriction in a bail order will not normally constitute a disproportionate interference so as to infringe Article 9 ECHR, Article 10 of the Fundamental rights Charter or the Equality Act 2010.

DECISION
McCloskey J
Introduction
1

(1) This application for permission to apply for judicial review was adjourned into Court and granted expedition. Further, it proceeded on an inter-partes basis, the Respondent's Acknowledgement of Service (“ AOS”) having been lodged.

2

(2) The Applicant, a national of Pakistan now aged 34 years, has been living in the United Kingdom since January 2005. His history is one of a refusal of his claim for asylum, an unsuccessful appeal against this decision and, since 2009, a series of further representations seeking leave to remain in the United Kingdom, all of which have been rejected by the Respondent, the Secretary of State for the Home Department (hereinafter the “ Secretary of State”). This is one of two judicial review permission applications brought before the Upper Tribunal. In the second (JR/11223/2014), in which the Applicant challenges the Secretary of State's decision that his most recent further representations, advanced under Article 8 ECHR, did not constitute a fresh claim, permission to apply for judicial review was refused by order dated 13 September 2014. An oral renewal application was then made. Following a partial hearing on 06 October and a further hearing on 12 October 2015, the refusal of permission was affirmed and permission to appeal to the Court of Appeal was refused.

3

(3) As noted in the preamble to this judgment, the Applicant's challenge was ultimately resolved consensually between the parties. This outcome crystallised on the day of hearing. In exchanges with the parties' representatives, the panel suggested that this did not necessarily preclude consideration of the substantive issues and expressing their views in a considered judgment. We took into account in particular the somewhat unusual and important nature of the issues raised by the Applicant's challenge and the substantial investment of resources in the proceedings by both the Tribunal and the parties. We also had regard to the decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450, at 456g/457c, which contains the following guidance, per Lord Slynn of Hadley:

“ My Lords, I accept, as both Counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se …….

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

While this guidance was formulated in the context of an appeal to the highest court, it has, in practice, been applied subsequently in judicial review proceedings at all tiers of the legal system. We refer to the recent decision of this Chamber in R (on the application of Bhudia) v SSHD (para 284(iv) and (ix)) IJR [2016] UKUT 25 (IAC).

4

(4) Lord Slynn, emphatically, did not purport to prescribe any inflexible rules or principles to be applied in the kind of circumstances which arose in Salem and which have materialised in the present proceedings. We have highlighted certain features of the Applicant's challenge above. Having considered the submissions of the parties' representatives, we gave directions for the filing of further written argument. Having considered the parties' further submissions, our provisional view that the Tribunal should pronounce upon the main issues raised by the Applicant's challenge is confirmed. This judgment is provided accordingly.

The Challenge
5

(5) In the Judicial Review Claim Form, the target of the Applicant's challenge is formulated in the following terms:

“ The Respondent's failure to respond to the Applicant's requests to revoke or vary the requirements that he wear an electronic tag and abide by a home curfew.”

In a letter dated 30 December 2014 written by his solicitors it is stated:

“ Our client was released on bail on 07 October 2014 with the conditions to live and sleep at his wife's address, reporting conditions between 10am and 4pmevery Wednesday and subject to electronic monitoring between 7pm and 7am.”

In the same letter it was suggested that the Applicant had complied with his conditions of temporary admission to the United Kingdom and bail conditions faithfully and without exception. The letter makes the following protest:

“ It is contended that the continued electronic monitoring is an unnecessarily restrictive condition upon our client ….

[It] is having a serious detriment to his attempts to acquire formal identification from the Pakistan Embassy, his religious life as he has been unable to participate in important ceremonial occasions for Shia Muslims and his social life, which is particularly important for him before Christmas as he may be prevented from enjoying it with his wife's family.”

The letter ends with a request that the electronic monitoring condition be removed.

6

(6) The bail order containing the offending conditions is dated 07 October 2014. It was made by a Judge of the First-tier Tribunal (the “ FtT”). The only evidence relating to the bail hearing and its outcome is the order itself, which is unremarkable. It contains provisions relating to sureties, coupled with three “secondary” conditions: the Applicant was required to live and sleep at a specified address, to report to the UK Border Agency in the terms indicated once weekly and to observe a curfew, with electronic monitoring, between 19.00 hours and 07.00 hours daily. The Order also contains a so-called “primary condition” requiring the Applicant to appear before the Chief Immigration Officer in accordance with the time, date and location specified “ and at any other place and on any other date and time that may be ordered”.

7

(7) In the Pre-Action Protocol (“PAP”) letter written by the Applicant's solicitors it is asserted:

“ The claimant [sic] applied for variation of bail to have his tagging removed and this was refused by Judge Clayton on 16 February 2015 as she was of the view that electronic tagging was appropriate for the claimant. The Judge was of the view that the electronic [tag] was not intrusive despite the claimant not being a criminal or having any history of absconding and stated that the tag was a ‘discrete gadget’. She also stated that the tag was a penalty for entering the UK in the back of a lorry clandestinely. Since then we have made numerous requests to varying Home Office Departments by letter and telephone to have the client's tagging removed [without response] …..

The claimant then made a further application for a bail variation hearing, which was heard on 14 July 2015. We were informed that the [FtT] did not have jurisdiction to hear this matter and the appropriate body to make a decision on bail variation would be the Chief Immigration Officer at North Shields.”

To summarise: the FtT made an order releasing the Applicant on bail; some four months later the FtT considered, and refused, an application to vary the conditions of the bail order; and, some five months later, declined to consider a further variation application on the ground that it lacked jurisdiction, the outcome being a withdrawal of the...

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