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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Secretary of State for the Home Department v SM (Rwanda) [2018] EWCA Civ 2770 (11 December 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2770.html Cite as: [2019] Imm AR 714, [2019] INLR 384, [2018] EWCA Civ 2770 |
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IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER (UTIAC)
Strand, London, WC2A 2LL |
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B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LADY JUSTICE ASPLIN
and
LORD JUSTICE HADDON-CAVE
____________________
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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SM (RWANDA) |
Respondent |
____________________
Ms Amanda Weston QC (instructed by Birnberg Peirce & Partners) for the Respondent
Hearing date : Tuesday 6th November 2018
____________________
Crown Copyright ©
LORD JUSTICE HADDON-CAVE :
Introduction
Background facts
FTT's Bail Form dated 30th July 2015
"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: …"
Primary Conditions of Bail Insert relevant section from Annex B with details.
"The applicant [SM] is to appear before his Offender Manager"
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."
"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 30th July 2015
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 31st 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
"… 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."
The Legal Framework
Schedules 2 and 3 to Immigration Act 1971
"Schedule 2, paragraph 22:
(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 … conditioned for his appearance before an immigration officer at a time and place named in the recognizance … 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."
(3) In any case in which an immigration officer or a First-tier Tribunal has power under this paragraph to release a person on bail, the officer of the First-tier Tribunal may, instead of taking the bail, fix the amount and the conditions of the bail (including the amount in which any sureties are to be bound) with a view to its being taken subsequently by any such person as may be specified by the officer or the First-tier Tribunal; and on the recognizance or bail bond being so taken the person to be bailed shall be released.
(4) A person must not be released on bail in accordance with this paragraph without the consent of the Secretary of State if –
(a) directions for the removal of the person from the United Kingdom are for the time being in force, and
(b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail."
"Schedule 3, paragraph 2:
(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 the 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 person to whom sub-paragraph (5) applies are –
(a) a person liable to be detained under sub-paragraph (1) above, while by virtue of a direction of the Secretary of State he is not so detained; and
(b) a person liable to be detained under sub-paragraph (2) or (3) above, while he is not so detained."
FTT President's Bail Guidance
"4. In essence, a First-tier Tribunal Judge will grant bail where this in no sufficiently good reason to detain a person and lesser measures can provide adequate alternative means of control."
"33. The first condition is to specify when bail will end. Where no immigration appeal is pending, a First-tier Tribunal Judge should grant bail with a condition that the applicant surrenders to an Immigration Officer at a time and place to be specified either in the bail decision itself or in any subsequent variation.
34. The judge will usually specify the immigration reporting centre nearest to where the applicant it to reside when released and will often specify that the application should answer to an Immigration Officer within seven days.
35. Once the applicant has answered to an Immigration Officer in accordance with that primary condition, the duration of any further grant of bail will be made by a Chief Immigration Officer rather than the Tribunal." [Emphasis added]
UT judgment
Construction
Other findings
UT Judge's reasoning on construction
Submissions
Analysis
Statutory bail provisions are to be strictly and restrictively construed
"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the court will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards."
"29. … In the present case our particular focus is not on a power of executive detention, but on a power to grant bail. Nevertheless, and despite the fact that the purpose may be to effect a release from detention, I consider that this similarly attracts the presumption of statutory interpretation because the conditions which may be attached to a grant of bail are capable of severely curtailing the liberty of the person concerned. It was common ground before us that bail under the 1971 Act may be subject to conditions which constitute a deprivation of liberty within article 5(1)(f) ECHR. As Mr Tam frankly accepts, the ability to exercise control through the use of what may be stringent conditions of bail in part underlies the purposive interpretation for which he contends. Moreover, this is, to my mind, a situation where the principle of legality is in play. As Lord Hoffmann observed in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131D-G:
"Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
In these circumstances, we are required to interpret the statutory provisions strictly and restrictively." [Emphasis added]
Rigid legal classifications should be avoided
"It would, however, be inconsistent with the doctrine ofultra vires
as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was
ultra vires
were to have any less consequence in law than to render the instrument incapable of ever having had any legal effect…"
"…[T]hough language like "mandatory," "directory," "void," "voidable," "nullity" and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind." [Emphasis added]
"15. … The rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, …the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction."
Two-stage test
"43. It is clear from the analysis [by the House of Lords] in Soneji that in any case concerning the consequences of a failure to comply with a statutory time limit, there are potentially two stages in the inquiry. The first is to ask the question identified by Lord Steyn: did Parliament intend total invalidity to result from failure to comply with the statutory requirement? If the answer to that question is 'yes', then no further question arises. Yet if the answer is 'no' a further question arises: despite invalidity not being the inevitable consequence of a failure to comply with a statutory requirement, does it nonetheless have that consequence in the circumstances of the given case and, if so, on what basis? It is at this second stage that the concept of substantial compliance may yet have a bearing on the outcome." [Emphasis added]
Did Parliament intend total invalidity to result from failure to comply with the provisions of paragraph 22(1A)?
'Non-finite' immigration bail is impermissible
"26. … This is a time-honoured form of words to express the idea of surrendering to bail. Once a bailed person surrenders to his bail (whether to magistrates or the Crown Court in a criminal case or to an immigration officer in an immigration case) it is then for the person to whom he surrenders to re-fix bail, if he or she considers it appropriate to do so and to determine any appropriate conditions."
"27. It is fair to say that there are no express words in paragraph 22 saying that bail conditions are to cease on surrender but in my view Mr Clement's [Bail Guidance] correctly states the position as a matter of necessary inference from the terms of paragraph 22 and particularly paragraph 22(1A). It follows that there is no sub-scenario of FTT bail of non-finite duration in a case where there is no pending appeal to the FTT. …" [Emphasis added]
UT approach to construction was incorrect
"50. With respect to Mr Singh, I do not consider that AR (Pakistan) has anything material to say about this question of statutory construction. The fact that there is 'no sub-scenario of FTT bail of non-finite duration" in a case where there is no pending appeal to the First-tier Tribunal (paragraph 27 of the judgments) does not mean that bail is necessarily void, if, through error, a judge fails to comply fully with the legislative requirements."
Respondent's arguments
Good practice
Conclusion
LORD JUSTICE UNDERHILL:
LADY JUSTICE ASPLIN: