The Secretary of State for the Home Department v SM (Rwanda)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Haddon-Cave,Lady Justice Asplin |
| Judgment Date | 11 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2770 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2017/1081 |
| Date | 11 December 2018 |
[2018] EWCA Civ 2770
Lord Justice Underhill
Vice-President of the Court of Appeal Civil Division
Lady Justice Asplin
and
Lord Justice Haddon-cave
Case No: C2/2017/1081
IN THE COURT OF APPEAL (CIVIL DIVISION)
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER (UTIAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Sarabjit Singh QC (instructed by Government Legal Department) for the Appellant
Ms Amanda Weston QC (instructed by Birnberg Peirce & Partners) for the Respondent
Hearing date: Tuesday 6 th November 2018
Approved Judgment
Introduction
The issue in this appeal is whether a failure by a First-tier Tribunal Judge to comply with the provisions of paragraph 22 of Schedule 2 of the Immigration Act 1971 when granting bail to a detained person rendered that grant of bail invalid and of no effect in law. On this question turns the validity of restrictions simultaneously imposed on the Respondent (“SM”) by the Secretary of State for the Home Department (“SSHD”).
The SSHD appeals from an order of Upper Tribunal (“UT”) Judge Peter Lane (as he then was) dated 13 th March 2017 whereby he declared that SM remained on bail granted by the First-tier Tribunal on 30 th July 2015 and quashed two decisions of the SSHD made on 3 rd December 2015 and 4 th January 2016 imposing bail restrictions.
Mr Sarabjit Singh QC appeared for the SSHD and Ms Amanda Weston QC appeared for SM.
Background facts
SM was born on 10 th January 1982 and is a national of Rwanda.
On 14 th April 1997, SM arrived in the UK with his mother and siblings. His mother claimed asylum and SM was named as a dependant. The asylum claim was refused on 25 th April 2001 but the family was granted 4 years' exceptional leave to remain.
On 21 st April 2005, SM's mother applied to the SSHD for indefinite leave to remain. This was granted on 10 th November 2005. On 16 th November 2005, SM was granted indefinite leave to remain in line with his mother.
From February 2001 onwards, SM committed a series of criminal offences. On 12 th September 2006, he was convicted of 10 counts of robbery. On 13 th November 2006, he was sentenced to life imprisonment on each of the 10 counts with a minimum term of 7 years, and was recommended for deportation. On appeal on 2 nd April 2007, SM's life sentences were quashed and replaced with a term of imprisonment for public protection with a minimum tariff of 7 years, and the recommendation for deportation was upheld.
On 13 th November 2012, the SSHD made a deportation order against SM. SM appealed and on 3 rd July 2013 his appeal was dismissed by the FTT. He was granted permission to appeal on 5 th September 2013 and on 19 th February 2014 his appeal was dismissed by the UT, on the basis that there was no material error of law in the FTT's decision. On 13 th April 2014, the UT refused to grant SM permission to appeal to the Court of Appeal and on 17 th November 2014 the Court of Appeal refused him permission to appeal. SM's appeal rights were exhausted on 27 th November 2014.
SM's 7 year tariff for the 10 robberies expired on or around 17 th December 2012. On 31 st March 2015, following a hearing on 30 th March 2015, the Parole Board directed SM's release from criminal custody on licence. However, he was thereafter detained by the SSHD under her immigration powers, having entered immigration detention on 30 th March 2015.
On 2 nd April 2015, SM (through his solicitors) applied to revoke the deportation order in force against him. On 17 th September 2015, the SSHD refused to revoke the deportation order, with no right of appeal, but following receipt of a letter before claim from SM dated 2 nd October 2015, on 28 th October 2015 the SSHD withdrew her decision dated 17 th September 2015 and stated that SM's submissions would be reconsidered.
FTT's Bail Form dated 30 th July 2015
On 30 th July 2015, SM was released from immigration detention by FTT Judge Narayan, purportedly on bail. The usual FTT bail form was filled out. It recorded the name and residential address of SM and a “Recognizance” from SM's mother in the sum of £300 and was signed by them as “Applicant” and “First Surety” respectively below the following standard declaration:
“We, the applicant and the sureties, have read and understood this bail decision and agree to pay the sums of money set out above if the applicant fails to comply with the following primary condition: …”
The bail form stated the “Primary Conditions of Bail” as follows:
| Primary Conditions of Bail | Insert relevant section from Annex B with details. “The applicant [SM] is to appear before his Offender Manager” |
The bail form listed six “Secondary Conditions of Bail” as follows:
| Secondary Conditions of Bail | Insert relevant section from Annex B with details. ✓ “Bail is granted subject to (i) the applicant cooperating with the arrangement for electronic monitoring (“tagging”)…. ✓ Bail is granted in the same terms as the licence. ✓ That in the event of the applicant applying for any variation of address or bail that the Home Office be notified of the details of the application. ✓ Must not enter paid employment, or engage in any business or profession. ✓ The applicant is also required to comply with the terms of his licence. and 1. The applicant shall live and sleep at the address set out above.” |
The bail form was signed by the FTT Judge below the following standard form 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.”
SSHD's Notice of Restriction dated 30 th July 2015
On the same day as SM was granted bail, 30 th July 2015, the SSHD issued a “DO4 (EM)” document to SM, namely a “Notice of Restriction” comprising restrictions imposed on SM under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
The SSHD's “Notice of Restriction” comprised the following restrictions:
i) Within 24 hours of receiving the notice, SM had to report in person to the immigration officer in charge of the Home Office Reporting Centre at Becket House in London.
ii) Thereafter, SM had to report in person to the immigration officer in charge of that reporting centre between the hours of 10am and 4pm every Friday, or on such other day in each week as the officer to whom he made his last weekly report might allow.
iii) SM had to live at a particular address.
iv) SM was to be monitored electronically by means of tagging/tracking.
v) SM had to be present at his address between 7pm and 9pm on 31 st July 2015 for an induction relating to the electronic monitoring equipment.
vi) Following induction, he had to be present at his address every day between the hours of 8pm and 7am.
vii) SM was not allowed to enter employment, paid or unpaid, or engage in any business or profession.
SM's challenge
On 30 th September 2015, SM's solicitors emailed the SSHD claiming that she had no power to impose restrictions and asked for them to be withdrawn. It was also contended that the Bail Form had included a restriction on voluntary working in error. The SSHD replied on 19 th October 2015, defending the imposition of restrictions. She stated:
“… It is noted that your client is no longer on Immigration Judge bail and is now on restrictions imposed by the Home Office. Consequently, this allows the Home Office to make changes to your clients['] conditions without the need to making [sic] a further application to the court. Therefore the restrictions imposed on your client are maintained.”
On 19 th October 2015, SM repeated his challenge to the imposition of restrictions. On 4 th November 2015, the SSHD replied, maintaining her position.
On 6 th November 2015, SM asked the SSHD to withdraw the restriction that prohibited him from entering unpaid employment. On 3 rd December 2015, the SSHD refused to do this, on the basis that the FTT's bail condition imposed on 30 th July 2015 prohibited SM from engaging in any business or profession, including a prohibition on him engaging in any voluntary unpaid work.
On 2 nd December 2015, SM's Offender Manager from the National Probation Service asked the SSHD to change SM's curfew hours from 8pm to 7am to 11pm to 6am. On 4 th January 2016, the SSHD refused to do this.
On 26 th January 2016, SM sent a letter before claim to the SSHD, challenging her decision dated 3 rd December 2015. On 29 th January 2016, SM sent a supplementary letter before claim to the SSHD, challenging her decision dated 4 th January 2016. On 4 th February 2016, the SSHD replied to SM's letter before claim dated 26 th January 2016, maintaining her position.
On 2 nd March 2016, SM issued the judicial review proceedings which are the subject of the present appeal. In a decision sent to the parties on 17 th May 2016, the UT refused SM permission to apply for judicial review. On 22 nd August 2016, permission to apply for judicial review was granted by the UT at an oral hearing. The substantive judicial review hearing took place before UT Judge Peter Lane on 25 th January 2017, who gave judgment on 13 th March 2017 as aforesaid.
The Legal Framework
Schedules 2 and 3 to Immigration Act 1971
I set out below the relevant provisions from Schedules 2 and 3 to the Immigration Act 1971. (It should be noted that Schedule 10 of the Immigration Act 2016, which came into force on 15 th January 2018, repeals paragraphs 21 to 25 of Schedule 2 and amends paragraph 2 of Schedule 3 of the 1971 Act).
“ Schedule 2, paragraph 22:
(1) The following namely—
(a) a person detained under paragraph 16(1) above...
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