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On Appeal from: [2018] EWCA Civ 2770

The Appellant is a national of Rwanda who had been granted indefinite leave to remain in the United Kingdom. After being convicted of serious criminal offences in 2006, he received a sentence of imprisonment and in 2012 was made the subject of a deportation order which has never been implemented. When he was later released on licence, the Secretary of State decided that The Appellant should be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), pending his removal or departure from the United Kingdom.

The Appellant was later released on conditional bail. The Respondent sought a condition prohibiting the Appellant from continuing to perform unpaid work, but the Tribunal decided not to impose such a condition. The Bail Order did not require the Appellant to appear before an immigration officer at a specified time and place, despite paragraph 22(1A) of Schedule 2 to the 1971 Act requiring that it do so.

A few days after Bail was granted, an immigration officer gave the Appellant a notice which stated that the Secretary of State had decided to now impose further restrictions, including that he “may not enter employment, paid or unpaid” and that he be subject to a curfew.

The Appellant’s requests for the withdrawal of the prohibition on him carrying out voluntary work and for the relaxation of the curfew restriction were refused. The Appellant applied for judicial review of those decisions, on the ground that the Respondent could not lawfully impose conditions which the Tribunal had declined to order. In response, the Respondent argued that it was lawful to impose the conditions because the Bail Order was legally defective and therefore void.

The Upper Tribunal decided that the Respondent’s decisions were unlawful and made a declaration that the Appellant remained on bail in accordance with the Bail Order. The Secretary of State then appealed, successfully, to the Court of Appeal, which made a declaration that the Bail Order was invalid and had no effect in law. The Appellant appealed this decision.

 

Held – appeal allowed. The order of the Upper Tribunal was restored, and the Appellant remains on bail in accordance with the original Bail Order.

The Court held that it is well-established that a court order must be obeyed unless and until it has been set aside or varied by the court. This rule applies to court orders whether they are valid or invalid, regular or irregular.

The Court of Appeal’s decision that the Bail order had no legal effect at all was an ‘over-simplification’. The present case was concerned not with an unlawful administrative act but with an order of a tribunal, and so gives rise to different issues and is governed by different principles.

In this case, even if the Bail Order was invalid, the Respondent was obliged to comply with it, unless and until it was varied or set aside. The allegation that the Bail Order was invalid was not, therefore, a relevant defence to the application for judicial review. As there was no other basis on which the Court of Appeal reversed the decision of the Upper Tribunal, and the Respondent does not ask the Supreme Court to dismiss the appeal on other grounds, it follows that the appeal should be allowed.

The Court added that the Respondent had every opportunity to challenge the Bail Order. They could, and should, have raised the matter with the First-tier Tribunal, and could alternatively have applied to the Upper Tribunal for permission to apply for judicial review.

 

For judgment, please download: Judgment (PDF)

For Court’s press summary, please download: Press summary (HTML version)

For a non-PDF version of the judgment, please visit:  Judgment on BAILII (HTML version)

Watch hearing

10 May 2021 Morning session  Afternoon session