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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AR, R (On the Application Of) (Pakistan) v The Secretary of State for the Home Department (Rev 1)  EWCA Civ 807 (29 July 2016)
Cite as:  INLR 1,  EWCA Civ 807,  WLR 255,  WLR(D) 449,  1 WLR 255
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE JACKSON
THE RIGHT HONOURABLE LORD JUSTICE VOS
| THE QUEEN ON THE APPLICATION OF AR (PAKISTAN)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Samantha Broadfoot (instructed by Government Legal Department) for the Respondent
Mr Sarabjit Singh (as Amicus Curiae)
Hearing dates: 26th July 2016
Crown Copyright ©
Lord Justice Longmore:
To appear before Chief Immigration Officer
At North Shields (Tyne and Wear) Reporting Centre, Northumbria House, Norfolk Street, North Shields NE30 1LN.
On Wednesday 15th October 2014 at 10 a.m.
And any other place on any other date and time that may be ordered.
1. The applicant shall live and sleep at the address set out above [14 The Pines, Park Road, Newcastle upon Tyne NE4 7ET].
2. The applicant shall report to the UK Border Agency. At: North Shields (Tyne and Wear) Reporting Centre, Northumbria House, Norfolk Street, North Shields NE30 1LN.
On every Wednesday
Between the hours of 10 a.m. and 4 p.m. Beginning on Wednesday 15th October 2014.
3. Bail is granted subject to (i) the applicant cooperating with the arrangement for electronic monitoring ("tagging") as set out in s 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and (ii) the UK Border Agency arranging electronic monitoring within two working days of this grant of bail. If electronic monitoring is not effected within two working days, then the applicant is to be released on condition that he complies with reporting conditions as stated above."
"Detention of persons liable to examination or removal
(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(1A) A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending –
a) completion of his examination under that paragraph; and
b) a decision on whether to cancel his leave to enter.
(1B) A person who has been required to submit to further examination under paragraph 3(1A) may be detained under the authority of an immigration officer, for a period not exceeding 12 hours, pending the completion of the examination.
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending –
a) a decision whether or not to give such directions;
b) his removal in pursuance of such directions.
Temporary admission or release of persons liable to detention
(1) A person liable to detention under paragraph 16(1), (1A) or (2) above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.
(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he 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 an immigration officer.
(2A) The provisions that may be included in restrictions as to residence imposed under sub-paragraph (2) include provisions of such a description as may be prescribed by regulations made by the Secretary of State.
(2B) The regulations may, among other things, provide for the inclusion of provisions –
a) prohibiting residence in one or more particular areas;
b) requiring the person concerned to reside in accommodation provided under section 4 of the Immigration and Asylum Act 1999 and prohibiting him from being absent from that accommodation except in accordance with the restrictions imposed on him.
(2C) The regulations may provide that a particular description of provision may be imposed only for prescribed purposes.
(2D) The power to make regulations conferred by this paragraph is exercisable by statutory instrument and includes a power to make different provision for different cases.
(2E) But no regulations under this paragraph are to be made unless a draft of the regulations has been before Parliament and approved by a resolution of each House.
(3) Sub-paragraph (4) below applies where a person who is at large in the United Kingdom by virtue of this paragraph is subject to a restriction as to reporting to an immigration officer with a view to the conclusion of his examination under paragraph 2 or 2A above.
(4) If the person fails at any time to comply with that restriction –
a) an immigration officer may direct that the person's examination … shall be treated as concluded at that time; but
b) nothing in paragraph 6 above shall require the notice giving or refusing him leave to enter the United Kingdom to be given within twenty-four hours after that time.
(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.
(1B) Sub-paragraph (1)(a) [presumably this should be (1A)] above shall not apply unless seven days have elapsed since the date of the person's arrival in the United Kingdom.
(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 First-tier Tribunal has power under this paragraph to release a person on bail, the officer or First-tier Tribunal may, instead of taking the bail, fix the amount and 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 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.
(1) An immigration officer or constable may arrest without warrant a person who has been released by virtue of paragraph 22 above –
a) if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond that he will appear at the time and place required or to break any other condition of it, or has reasonable grounds to suspect that that person is breaking or has broken any such other condition; or
b) if, a recognizance with sureties having been taken, he is notified in writing by any sureties of the surety's belief that that person is likely to break the first-mentioned condition, and of the surety's wish for that reason to be relieved of his obligation as a surety …
(1) Tribunal Procedure Rules must make provision with respect to applications to the First-tier Tribunal under paragraphs 22 and 24 and matters arising out of such applications."
"41 Decision in bail proceedings
(1) The Tribunal must provide written notice of its decision to –
a) the parties; and
b) if the bail application is for the bail party to be released on bail, the person having custody of the bail party.
(2) Where bail is granted, varied or continued, the notice must state any bail conditions, including any amounts in which the bail party and any sureties are to be bound.
(3) Where bail is refused or where the Tribunal orders forfeiture of the recognizance, the notice must include reasons for the decision.
(4) Where, instead of granting or refusing bail, the Tribunal fixes the amount and conditions of the bail with a view to the recognizance being taken subsequently by a person specified by the Tribunal, the notice must include the matters stated in paragraph (2) and the name or office of the person so specified.
(5) Paragraph (6) applies where the Tribunal determines that directions for the removal of the bail party from the United Kingdom are for the time being in force and the directions require the bail party to be removed from the United Kingdom within 14 days of the date of the decision to release the bail party on bail or under paragraph (4).
(6) The notice provided under paragraph (1) must state –
a) the determination of the Tribunal under paragraph (5);
b) whether the Secretary of State has consented to the release of the bail party;
c) where the Secretary of State has not consented to that release, that the bail party must therefore not be released on bail."
The Upper Tribunal decision
i) although schedule 2 to the Immigration Act 1971, which empowered the FTT to grant bail on conditions in para 22, did not expressly confer a power to vary conditions of bail, the power to vary the conditions was to be implied;
ii) there was no identifiable power for the Secretary of State to remove or relax bail conditions imposed by the FTT;
iii) the Secretary of State had therefore acted ultra vires in purporting to discharge the tagging condition (there was no separate consideration of the question whether she could have discharged the curfew condition);
iv) the Presidential Guidance Note No. 1 of 2012 issued by the Immigration and Asylum Chamber ("the Guidance") contemplated that bail could be granted by the FTT in one of two scenarios, first where an appeal is pending and second where no appeal is pending; there were then two sub-scenarios, bail of finite and bail of non-finite duration; the FTT had a continuing role for so long as the bail order existed. While the Guidance was not law, it supported the view that neither the Secretary of State nor her immigration officers could, on their own initiative, vary or discharge what was an order of a court;
v) since the Secretary of State had no power to vary the conditions of bail imposed by the FTT, the proposed judicial review of her failure to exercise that power had to fail; and
vi) even if she had had the power, the application would still have failed because there was no disproportionate interference with any Convention right or any breach of the Equality Act 2010.
"… in this scenario, no statutory power is conferred on the CIO. Second, absent clear and unequivocal statutory prescription, any suggestion that the CIO could interfere with an order of the FTT – whether by the mechanisms of revision, amendment, termination, substitution or otherwise – would be inimical to the rule of law. The executive, absent unambiguous legislative authority, cannot tamper with the order of a court or tribunal. The separation of powers prohibits it from doing so. This prohibition is of such constitutional importance that it extends to cases where the order seems obviously legally defective. In such cases, the effect of the omnia praesumunur principle, sometimes formulated as the principle of presumptive regularity or validity, is that the order remains in force unless and until set aside, varied or substituted by a further order of a court or tribunal of competent jurisdiction."
"(i) Presidential Guidance Note No 1 of 2012 "Bail Guidance for Judges Presiding over Immigration and Asylum Hearings" is an instrument of guidance and not instruction. It should, however, normally be followed and good reason is required for not doing so.
(ii) The First-tier Tribunal ("FtT") is empowered to adjudicate on applications to vary the terms of its bail orders.
(iii) The FtT retains exclusive power to vary any of its bail orders during their lifespan. The Chief Immigration Officer has no power to interfere with such orders or make any other order in such circumstances.
(iv) In cases where there is no appeal pending, an application for bail can be made to either the FtT or the Chief Immigration Officer."
i) AR, starting on 19th December 2014, had made eleven written requests to the Secretary of State requesting the removal of the electronic tag or a variation of the hours of curfew; none of these requests was answered;
ii) accordingly he issued judicial review proceedings on 7th August 2015 challenging the legality of the hours of curfew; that claim to judicial review should have been upheld, because the curfew requirement had been imposed by an immigration officer not by the FTT;
iii) on the true construction of para 22 (1A) of schedule 2, the FTT had power to grant bail in order to secure AR's surrender to an immigration officer but, once surrender occurred, any conditions of bail imposed by the FTT then lapsed and continuance of bail was then at the discretion of the Secretary of State and/or her officers, although she and/or they would be guided by any conditions which the FTT had proposed and could be judicially reviewed if they unreasonably imposed more draconian conditions. This power to grant bail arose under para 22 (1A) and/or (3);
iv) if that was wrong, then the Secretary of State could exercise her powers under para 21 of schedule 2 and grant temporary admission. That paragraph also empowered the setting of conditions and any such condition could be varied by the Secretary of State;
v) in any event the Secretary of State, having asked the FTT for conditions to be imposed, was entitled to relax the conditions she originally requested; and
vi) this court should now remit to the Upper Tribunal the question whether the curfew or the electronic tagging requirement contravened the Equality Act 2010, breaches of the ECHR no longer being pursued.
The Secretary of State's submissions
i) paras 33 and 35 of the Guidance stated correctly that once an applicant had answered to the primary condition of bail, the duration of any further grant of bail "will be made by a Chief Immigration Officer rather than the Tribunal"; and
ii) this view of the law was supported by para 24 of schedule 2 which empowers an immigration officer or police constable to arrest without warrant a person in breach of any condition of bail but only during the period when the primary condition of reporting to a CIO remains to be satisfied.
Submissions of the Amicus Curiae
i) para 21 of schedule 2 to the 1971 Act is predicated on the relevant immigration officer himself temporarily admitting or releasing the relevant person from detention. It does not concern (and is irrelevant to) any release by the FTT (whether on bail or not). That is governed by para 22;
ii) the argument that AR's FTT bail "came to an end" on presentation to the CIO in Newcastle cannot be right because there would be no need to impose any secondary conditions; yet secondary conditions (such as those in the present case) were often imposed and were indeed contemplated in both the 2014 rules and the Guidance; and
iii) reliance on para 24 is misplaced because it refers not only to breach of a condition that the bailed person will appear at the time and place required but also to breach of any other condition which must itself be a reference to a secondary condition imposed for some purpose.
Duration of FTT's conditions of bail
"BAIL CONDITIONS THAT CAN BE IMPOSED BY FIRST-TIER TRIBUNAL JUDGES
32. The Tribunal will always set some conditions when granting bail to ensure that the person concerned answers when required to do so. However, the stringency of the conditions set will vary according to the circumstances and the level of monitoring of the applicant that may be required.
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 is to reside when released and will often specify that the applicant 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. It is to be expected that the Tribunal's decision as to the principle of release will be followed in the absence of a change of circumstances. If a person does not answer as directed, then forfeiture proceedings are likely to commence in the Tribunal."
There are then provisions about bail pending an appeal which are not relevant to this case. Paragraph 55, however, provides:-
"It may be necessary to vary bail conditions particularly where bail has continued for some time. Responsibility for considering such variation lies: (a) with the Tribunal while an appeal is pending; (b) with an Immigration Officer in all other circumstance."
"on his entering a recognizance … conditioned for his appearance before an immigration officer at a time and place named in the recognizance …"
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.
Lord Justice Jackson:
Lord Justice Vos: