R (on the application of Majera (formerly SM (Rwanda)) (AP) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Sales,Lord Leggatt,Lord Burrows,Lady Rose |
| Judgment Date | 20 October 2021 |
| Neutral Citation | [2021] UKSC 46 |
| Court | Supreme Court |
[2021] UKSC 46
Lord Reed, President
Lord Sales
Lord Leggatt
Lord Burrows
Lady Rose
Appellant
Amanda Weston QC
Anthony Vaughan
Gordon Lee
(Instructed by Birnberg Peirce Ltd)
Respondent
Sarabjit Singh QC
Jim Duffy
(Instructed by The Government Legal Department)
Intervener (Bail for Immigration Detainees)
Raza Husain QC
Laura Dubinsky
Shane Sibbel
(Instructed by Herbert Smith Freehills LLP (London))
Heard on 10 May 2021
(with whom Lord Sales, Lord Leggatt, Lord Burrows and Lady Rose agree)
This appeal raises a question of constitutional importance: whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order.
The appellant is a national of Rwanda who came to the United Kingdom as a child and was granted indefinite leave to remain. In 2006 he was convicted of serious offences, and an indeterminate sentence for public protection was imposed, with a minimum of seven years to be served. It was recommended that he should be deported. In November 2012 the Secretary of State made a deportation order. That order has never been implemented. An application to the Secretary of State for the revocation of the order, made in March 2015, remains outstanding.
During 2013 the appellant was transferred to open prison conditions, and undertook voluntary work in the community. During 2014 and 2015 he worked as a volunteer at a charity shop. On 30 March 2015 the Parole Board directed his release on licence. He was however immediately detained by the Secretary of State under paragraph 2 of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”).
In July 2015 the appellant applied to the First-tier Tribunal for bail under paragraph 22 of Schedule 2 to the 1971 Act. The application was heard by First-tier Tribunal Judge Narayan on 30 July 2015. Having heard submissions on behalf of the appellant and the Secretary of State, the judge decided that bail should be granted, with the appellant's mother acting as surety in respect of a specified sum of money. In relation to the conditions to be attached to bail, the judge decided that the appellant should report to his offender manager. Another issue concerned the appellant's voluntary work. He wished to continue working as a volunteer at the charity shop. The Secretary of State, in her written submissions, sought a condition that the appellant must not enter employment, paid or unpaid. The judge decided not to impose a prohibition on unpaid work.
The judge's decision was recorded in a notice of decision (“the bail order”) of the same date. Amongst other matters, it recorded the “primary condition of bail” as follows:
“The applicant is to appear before his offender manager.”
The order next listed a number of “secondary conditions of bail”. They included that “Bail is granted in the same terms as the licence”, that “The applicant is also required to comply with the terms of his licence”, and that he “Must not enter paid employment, or engage in any business or profession”. The order was signed by the judge below the following declaration:
“I certify that I have granted/continued bail to the applicant subject to the conditions set out above and have taken the recognisance of the applicant and the first and second surety.”
As I have explained, the bail order incorporated the terms of the appellant's licence under the Criminal Justice Act 2003. The licence required him to report to his supervising officer (the offender manager to whom the bail conditions referred) at the offices of the National Probation Service in London before 3pm on 31 July 2015. It also required him to undertake only such work (including voluntary work) as was approved by his supervising officer. It also imposed a curfew between 8pm and 7am.
Later on 30 July 2015, shortly after the hearing before the judge, an immigration officer gave the appellant a notice notifying him that “the Secretary of State has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the Immigration Act 1971, she now imposes the following restrictions on you”. The restrictions included, first, that “[y]ou may not enter employment, paid or unpaid”, and secondly, the imposition of a curfew between 8pm and 7am. The appellant was released.
The appellant's solicitors subsequently wrote to the Secretary of State, maintaining that she had no power to impose the restrictions and asking that they be withdrawn. They contended that the appropriate course, if the Secretary of State was dissatisfied with the conditions imposed by the judge, was either to seek a variation of the conditions or to challenge the judge's decision in proceedings for judicial review, there being no right of appeal. In response, the Secretary of State wrote on 19 October 2015 that “your client is no longer on immigration judge bail and is now on restrictions imposed by the Home Office”. In subsequent correspondence, the Secretary of State adopted the position that the bail order had ceased to have effect when the appellant reported to his supervising officer. Subsequently, it was argued on behalf of the Secretary of State that although the bail order remained in force, it was not inconsistent with the notice of restrictions. Neither of those positions is now maintained on behalf of the Secretary of State.
A further request for the prohibition of voluntary work to be withdrawn, supported by the appellant's supervising officer, was refused by the Secretary of State on 3 December 2015. A request by the appellant's supervising officer for the curfew restriction to be altered to 11pm to 6am, so as to correspond to the hours which were then considered appropriate for the appellant's licence, was also refused on 4 January 2016. The appellant then applied for judicial review of those two decisions.
The powers of immigration detention relevant to these proceedings are contained in paragraph 2 of Schedule 3 to the 1971 Act. The provision has been subject to frequent amendment. As it stood at the relevant time, it provided, so far as material:
“(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom …
…
(4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), ( 2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.
(5) A person to whom this sub-paragraph applies 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 the Secretary of State.
(6) The persons to whom sub-paragraph (5) above applies are —
…
(b) a person liable to be detained under sub-paragraph ( 2) or (3) above, while he is not so detained.”
The appellant was a person to whom sub-paragraph (3) applied, by virtue of the deportation order made in November 2012. He was detained under that provision between 30 March and 30 July 2015.
The bail provisions relevant to these proceedings are contained in paragraph 22 of Schedule 2 to the 1971 Act. They applied to the appellant by virtue of paragraph 2(4A) of Schedule 3 (para 10 above). As has been explained, the appellant was, following his detention by the Secretary of State on 30 March 2015, a person who was detained under paragraph 2(3) of Schedule 3, and was therefore, by virtue of sub-paragraph (4A), a person to whom paragraph 22 of Schedule 2 of the 1971 Act applied.
Paragraph 22 of Schedule 2, as it stood at the relevant time, provided, so far as material:
“(1) The following namely —
(a) a person detained under paragraph 16(1) above pending examination;
(aa) a person detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enter; and
(b) a person detained under paragraph 16(2) above pending the giving of directions,
may be released on bail in accordance with this paragraph.
(1A) An immigration officer not below the rank of chief immigration officer or the First-tier Tribunal may release a person so detained on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before an immigration officer at a time and place named in the recognizance or bail bond or at such other time and place as may in the meantime be notified to him in writing by an immigration officer.
…
(2) The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the immigration officer or the First-tier Tribunal to be likely to result in the appearance of the person bailed at the required time and place; and any recognizance shall be with or without sureties as the officer or the First-tier Tribunal may determine.”
Rule 43 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604), provides:
“The person having custody of the bail party must release the bail party upon — (a) being provided with a notice of decision to grant bail …”
The appellant sought judicial review of the Secretary of State's decisions dated 3 December 2015 and 4 January 2016. When granting permission, the Upper Tribunal stayed the proceedings in order to...
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