The judgment in this case considered the question of “If bail is granted by the First-Tier Tribunal on conditions, how long do these conditions last and does the Secretary of State or her immigration officers have authority to vary or relax those conditions?” These were the central issues on appeal from the UT (Immigration and Asylum Chamber) judgment given by McCloskey P and UTJ Storey on 24 February 2016.
The Appellant in this case was released on bail by the FTT, on 9 October 2014, subject to primary and secondary conditions including tagging and curfew conditions. The secondary conditions included a requirement for the Appellant to report to the UKBA on a specific date. The Appellant reported as required and the SSHD notified him of his curfew conditions. The Appellant later made numerous requests to the SSHD to vary the curfew order and/or remove the requirement to wear the electronic tag with which had been fitted. He also made a bail variation application to the FTT which was refused on 16 February 2015 and on a further application on 14 July 2015 the FTT declined to consider the request on the grounds that it lacked jurisdiction and that the appropriate body was the CIO. On 7 August 2015 the Appellant filed a Judicial Review application at the UT seeking to challenge the legality of his tagging and curfew.
The SSHD conceded and removed the Appellant’s tag on 9 October 2015.The UT decided to determine the issues owing to their “unusual and important nature”. The UT decided that the SSHD did not have the power to remove or relax bail conditions imposed by the FTT and had acted ultra-vires and that the FTT had a continuing role for so long as the bail order existed.
The Appellant filed an appeal to the Court of Appeal challenging this decision as the judgment would have meant that the Appellant would need to be re-tagged and the SSHD supported this application. The submissions were that on the true construction of paragraph 22 (1A) of Schedule 2 Immigration Act 1971, the FTT had the power to grant bail in order to secure the Appellant’s surrender to an Immigration officer and once that had been done any conditions of bail imposed by the FTT lapsed and continuance of bail was then at the discretion of the SSHD and her officials. The Appellant submitted that the SSHD would be guided by any conditions the FTT proposed and could be judicially reviewed if they unreasonably imposed more draconian conditions.
“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 guidance correctly states the position as a matter of necessary inference from the terms of paragraph 22 and particularly 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”. (Paragraph 27)
The Court of Appeal decided that it was clear that the curfew conditions were imposed by the SSHD and that it was right that any application to discharge it was therefore to be made to her and not the FTT. “To that extent, the Upper Tribunal seems to have made its decision under a misapprehension of the position (no doubt because they did not have the documents produced recently to this court) and should have decided that, if the decision to impose a curfew was properly authorised, the Secretary of State had power to vary or discharge it. If it was not a properly authorised decision it could, no doubt, be quashed by judicial review but either way the Secretary of State was the correct respondent”.(Paragraph 20)
Further, the Court of Appeal agreed that the correct legal position is that conditions of bail imposed by the FTT expire on surrender to an immigration officer who then imposed his or her own conditions as is reflected clearly in paragraphs 33 and 35 of the Presidential Guidance Note.
This decision greatly assists in clarifying the grey area as to when FTT bail comes to an end and when it becomes the responsibility of the SSHD to impose and vary bail conditions and what powers the SSHD has in this respect. Practitioners should now have a clearer picture of when to apply for variation of bail to the FTT and when to approach the SSHD directly.
Counsel - Chris Buttler of Matrix Chambers.
Solicitor – Shalini Patel