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robbie-stern-photoOn 10 May 2021, the Supreme Court heard the appeal in R (Majera) (formerly SM (Rwanda)) v Secretary of State for the Home Department (“SSHD”). The question on appeal is whether a defective order granting immigration bail has legal effect.

Background

Mr Majera is a national of Rwanda who has had indefinite leave to remain since 2005. Following a conviction for a series of robberies, he was subject to a deportation order made by SSHD in November 2012. He entered immigration detention in March 2015.

On 30 July 2015, Mr Majera was purportedly released on bail by First-Tier Tribunal (“FTT”) Judge Narayan. The FTT bail form stated, as the “Primary Conditions of Bail”, that “the applicant is to appear before his Offender Manager”. Six other conditions were included as “Secondary Conditions of Bail” including electronic tagging, a residence requirement and a prohibition on paid employment.

That same day, SSHD issued a “Notice of Restriction”, imposing seven further restrictions on Mr Majera. These included additional weekly reporting requirement to an immigration officer, a curfew and a prohibition on “paid or unpaid” work.

The Upper Tribunal

Mr Majera challenged SSHD’s “Notice of Restriction” before the Upper Tribunal (“UT”), claiming that SSHD was not entitled to attach additional conditions to an individual already subject to immigration bail imposed by a FTT judge.

SSHD argued that the primary condition of bail, that Mr Majera must appear before his “offender manager”, was “manifestly non-compliant” with sub-paragraph 22(1A) of Schedule 2 to the  Immigration Act 1971, which expressly requires reporting to an “immigration officer”. The FTT’s grant of bail was thus void ab initio and consequently, SSHD was free to impose her own conditions.

UT Judge Peter Lane (as he then was) rejected that submission. He declared that Mr Majera remained on FTT bail and consequently SSHD’s “purported bail conditions…can have no legal effect”.

The Court of Appeal

SHHD appealed to the Court of Appeal on three grounds: (i) the UT erred in finding that the grant of bail by the FTT was valid; (ii) the UT erred in finding that SHHD’s Notice of Restriction had no effect; and (iii) the UT erred in impermissibly creating a species of FTT bail of ‘non-finite’ duration.

In a judgment of 6 November 2018 ([2018] EWCA Civ 2770), Underhill LJ, Asplin LJ and Haddon-Cave LJ allowed SSHD’s appeal, for the following reasons:

Construction:

Giving the leading judgment, Haddon-Cave LJ held (at [52]) that in all “administrative law cases where questions of statutory construction and validity arise”, the correct test is whether “Parliament intend[ed] total invalidity to result from failure to comply with the statutory requirement” (applying the first limb of the two-stage test from North Somerset District Council v Honda Motor Europe Ltd & Others [2010] EWHC 1505 at [43]).

The stipulations in sub-paragraph 22(1A) that (i) bail was to be granted by a a senior immigration officer “not below the rank of chief immigration officer” and (ii) that the FTT had the power to release a detained person “in accordance with this paragraph”, made it “obvious” that there was no power to release a detained person other than in accordance with the provision [55].

Further still, these were mandatory conditions for the grant of bail and could be contrasted with the more “permissive” conditions referred to in sub-paragraph 22(2) of the Schedule [57]. It was plain that Parliament had intended total invalidity to result from failure to fulfil these “primary conditions”; FTT Judge Naryan’s grant of bail was thus “totally invalid, void and unlawful” [60].

Non-finite immigration is impermissible

Applying Longmore LJ’s judgment in R (AR (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 807, the Court also agreed with SSHD’s submission that the FTT’s failure to specify a “time and place” for surrendering to bail had the additional consequence that the purported grant of bail was of a ‘non-finite’ duration. Therefore, it was impermissible in any event [67].

Discussion

The case raises a fundamental question as to the relationship between the executive and the courts: was it for SSHD to decide unilaterally to disregard a court order?

The Court of Appeal arguably sidestepped the appellant’s reliance on the principle that “an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order” (KW (by her litigation friend) and others v Rochdale MBC [2015] EWCA Civ 1054 at [22]), holding that once the issue was before a superior court, the principle was academic [74].

However, despite this ruling, all three judges criticised the Home Office’s conduct. In a particularly damning passage, Haddon-Cave LJ noted [76]:

In my view, it was not appropriate for the SSHD simply to sit back and assert her right to impose restrictions on SM in the face of the FTT’s extant bail order, thereby requiring the claimant after several months to have to resort to judicial review proceedings. The SSHD should immediately have sought to re-list the matter before the FTT for mention and resolution.

Yet despite this apparent disapproval, the ruling arguably empowers the Home Office to continue to rely on defects in court orders to “sit back and assert [its] right to impose restrictions”. A tension therefore arises between principle and practice. Whether the Supreme Court is content to allow this tension to remain unresolved will be of considerable interest.

Robbie Stern is a trainee at Matrix Chambers