AR, R (On the Application Of) (Pakistan) v The Secretary of State for the Home Department (Rev 1)

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? Those are the central questions in this appeal from the Upper Tribunal (Immigration and Asylum Chamber) judgment given by McCloskey P and UTJ Storey signed by them on 16^th January and 5^th February 2016 respectively, handed down by UTJ Storey on the latter date, and published on 24^th February 2016.

The appellant, AR (“AR”) is a Pakistani national who entered the United Kingdom illegally in January 2005. His initial asylum claim was unsuccessful and an appeal was dismissed in June 2007. He did not return but made subsequent applications for leave to remain from 2009 onwards but these were similarly rejected by the Secretary of State, during which time AR continued to reside in the UK illegally. In December 2010 he began a relationship with Victoria Howe, a British citizen. They celebrated an Islamic marriage ceremony on 19^th October 2014.

On 28^th May 2014, almost 7 years after his asylum claim had been dismissed, immigration officers made an enforcement visit. The Secretary of State then detained AR as an immigration offender pursuant to paragraph 16(2) of the schedule 2 of the Immigration Act 1971 either because he was an illegal entrant or because his application for leave to remain had been refused. On 7^th October 2014, the First-tier Tribunal (“FTT”) granted AR immigration bail subject to the following conditions:-

“Primary Condition

To appear before Chief Immigration Officer

At North Shields (Tyne and Wear) Reporting Centre, Northumbria House, Norfolk Street, North Shields NE30 1LN.

On Wednesday 15^th October 2014 at 10 a.m.

And any other place on any other date and time that may be ordered.

Secondary Conditions

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 15^th 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.”

AR was released from immigration detention on 9^th October 2014 and on his first report may or may not have been informed by the reporting officer on behalf of the Secretary of State that he was required to stay at the designated address between 7:00 p.m. and 7.00 a.m. every day. There is no written record of any notification of this further condition having been given to AR because, according to Miss Broadfoot who appeared for the Secretary of State, his bail file has gone missing.

AR must at some stage have reported to Northumbria House and have been notified of the curfew because he subsequently applied for a variation of his bail conditions so that he could attend prayers in the evening. FTT Judge Clayton refused that application on 16^th February 2015. AR had already begun to make several unanswered requests to the Secretary of State to vary the curfew order and/or delete the requirement to wear the electronic tag with which he had been fitted. He also made a further application to the First Tier Tribunal which came before a hearing on 14^th July 2015. The FTT declined to consider a variation on the grounds that it lacked jurisdiction and that the appropriate body was the Chief Immigration Officer.

On 7^th August 2015, AR filed a judicial review claim form, seeking to challenge, inter alia, the legality of his tagging and curfew, claiming that his inability to attend evening prayers at his local mosque amounted to unjustified indirect discrimination for reasons relating to religion, contrary to sections 19 and 29 of the Equality Act 2010. Further reliance was placed upon Articles 8 and 9 of the European Convention on Human Rights (“the ECHR”) and Article 10 of the Charter of Fundamental Rights of the European Court.

The claim was transferred to the Upper Tribunal (“UT”) and a rolled-up hearing was listed for 6^th October 2015 but was subsequently adjourned, for want of time, to 12^th October 2015. On that date the matter came before the Upper Tribunal. By this time the Secretary of State had, on 9^th October 2015, decided to discharge AR’s conditions of bail and agreed to remove AR’s electronic tag. She wrote to AR saying “the conditions of your bail are hereby varied to cease immediately”. The parties came to the hearing on 12^th October 2015 having signed a consent order that AR had leave to withdraw his claim for judicial review. Importantly he reserved his right to claim damages for breach of the Equality Act and Articles 9 and 10 of the Convention.

Following exchanges with the parties, the UT considered that it would, notwithstanding the agreement reached by the parties, determine the issues raised in the claim owing to their “unusual and important nature” and the likelihood of the authority of the Secretary of State to relax bail conditions arising in future cases.

The relevant provisions of schedule 2 to the Immigration Act 1971 are:-

“Detention of persons liable to examination or removal

16

(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

21.

(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.

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 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.

…

24.

(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 …

25.

(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.”

The rules in force at the time of the application were the Asylum and Immigration Tribunal (Procedure) Rules 2005; on 20^th October 2014 the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the 2014 Rules”) came into force. Rule 38(6) of these 2014 rules, which (according to para 17 of the Upper Tribunal judgment) did not materially differ from the 2005 rules, requires the FTT to provide a copy of any bail application to the Secretary of State as soon as reasonably practicable after receipt. Rule 40 requires the Secretary of State to provide a written statement of the reasons for opposing the application. Rule 41 then provides:-

“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.”

As the Upper Tribunal observed (para 18) these rules contemplate an adversarial process as between the applicant and the Secretary of State and rule 38(2) contemplates that there can be an application for a variation of bail conditions. After receiving written submissions, the Upper Tribunal decided:-

The Upper Tribunal considered that the present case fell within the second sub-scenario mentioned above and in a critical passage said (para 29):-

“… 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.”

The Upper Tribunal accordingly made the following declaration:-

“(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.”

AR applied for permission to appeal from this decision; the application was supported by the Secretary of State who contended that she did have power to relax or discharge any condition of bail imposed by the FTT because (among other reasons) such conditions would only have been imposed at her request in the first place. The application for permission to appeal came before my Lord, Jackson LJ, and Lindblom LJ who directed the appointment of an amicus curiae for the purpose of supporting the Upper Tribunal judgment which would, otherwise, have had nobody to defend it. Mr Sarabjit Singh of counsel undertook this burden and the Court is most grateful to him for having done so.

Mr Buttler on AR’s behalf submitted:-

Miss Broadfoot, on behalf of the Secretary of State, supported Mr Buttler’s submissions. Indeed submission (iii) (more accurately) was an original submission of the Secretary of State and adopted by Mr Buttler. She submitted further:-

Mr Sarabjit Singh submitted:-

It is clear that the FTT did not impose any condition of curfew. Selective documents (selective because, as I have said, the file has been lost) recently disclosed by the Secretary of State show that AR may have been notified on 9^th October 2014 that he was temporarily admitted to the United Kingdom pursuant to paragraph 21 of Schedule 2 to the 1971 Act subject to his residing at his home address in Park Road, Newcastle and reporting to Northumbria House in North Shields when further reporting events would be set up. On the same day a request was made to monitoring contractors to supply monitoring equipment to AR on 10^th October 2014. They were informed that he had to be at his address between the hours of 0700 and 1900 every day until further notice. How AR was himself informed (or otherwise got to know) of this curfew requirement does not, as I have said, appear.

On the face of it, the relevant immigration officer seems to have thought not only that the conditions of bail imposed by the FTT on 7^th October 2014 would expire when AR presented himself at Northumbria House on 15^th October but that he could impose new and different conditions from those imposed by the FTT on 7^th October.

Whatever the rights and wrongs of that, it is clear that the curfew condition was imposed by or on behalf of the Secretary of State and that any application to discharge it was therefore rightly made to her 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.

In fact the Secretary of State never purported to discharge the curfew condition on its own. She varied all the conditions “to cease immediately”. This obviously included the electronic tagging condition which had originally been imposed by the FTT and the Upper Tribunal’s decision covered that condition. The question does, therefore, arise whether the Secretary of State did have power to vary or discharge that condition.

It is clear that the immigration officer who decided to revoke the conditions of bail thought that he or she was revoking conditions imposed at the time of surrender on 15^th October. This, of course, is in accordance with what both Miss Broadfoot and Mr Buttler submit is the correct legal position namely that conditions of bail imposed by the FTT expire on surrender to an immigration officer who then imposes his or her own conditions. That is indeed reflected in paragraphs 33 and 35 of the Presidential Guidance Note.

It is appropriate to set out the relevant paragraphs of the Guidance Note emphasising that, while it cannot be an authoritative statement of the law, it is at least judicial guidance compiled by the President of the First-tier Tribunal Immigration and Asylum Chamber (Mr Clements) and not, of course, administrative guidance. Paragraphs 32-35 are important:-

“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.”

It can be seen that this Guidance does not support the Upper Tribunal’s second sub-scenario of FTT bail of non-finite duration. The Guidance expressly contemplates that, if no appeal is pending before the FTT, duration of bail after surrender to an immigration officer is for “a Chief Immigration Officer rather than the Tribunal” and that the responsibility for considering variation “lies with an Immigration Officer in all other circumstances” than while an appeal is pending.

The Upper Tribunal, although citing these provisions, does not directly address the question whether the provisions are wrong in law but, by implication, the Upper Tribunal has held that they are.

For my part I cannot agree with the Upper Tribunal’s views about this. I do not get much assistance from para 21 of schedule 2 which deals with temporary admission to the United Kingdom by an immigration officer but does not deal with bail or bail conditions in connection with “a person detained” such as AR was. That is the province of para 22 which authorises a Chief Immigration Officer or the First Tier Tribunal to release a detained person

“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.

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. It follows further that, if and to the extent conditions of bail imposed by the FTT continue after surrender, they are to be treated in law as imposed by the immigration officer to whom the detained person surrenders and can be varied, if appropriate, by another immigration officer and that the Secretary of State was therefore entitled to discharge the conditions as she did on 9^th October 2015.

What then of Mr Sarabjit Singh’s submissions that if this is right there is no need for the FTT to impose secondary conditions and that the 2014 Rules make it clear that adversarial argument about conditions is to be conducted in the FTT rather than at the time of surrender? The answer is that secondary conditions (such as residence and submission to electronic tagging) are required because there is inevitably a lapse of time between release from detention and the date of surrender. During that lapse of time, conditions such as that imposed by the FTT in this case will, in any event, be necessary. Any conditions imposed by the FTT will also be important guidance to an immigration officer to whom a bailed person surrenders. He is likely to continue the terms; any departure from them to the prejudice of the bailed person would have to be justified and could be amenable to judicial review. That might have been important in this case if the Secretary of State had sought to maintain the curfew condition which, as I have said, was not imposed by the FTT at all.

In these circumstances the Upper Tribunal should, in my judgment, whether on being informed that the Secretary of State had discharged AR’s bail conditions or after hearing argument as to her entitlement to do so, have accepted that she had the power to do what she purported to do and there was no question of her having acted ultra vires. In these circumstances it is not necessary to consider Mr Buttler’s alternative submission that she was entitled to exercise her powers of temporary admission under para 21 of schedule 2 or could, in any event, have relaxed conditions the imposition of which she had originally requested and I would prefer not to do so. Nor is it necessary to consider a yet further argument of Mr Buttler that the grant of temporary admission to the United Kingdom or an indication by the Secretary of State that she no longer wanted the bail conditions to apply was equivalent to the discontinuance of criminal proceedings so that bail would automatically lapse. It is also unnecessary to consider Miss Broadfoot’s submission on para 24 of schedule 2 but, as presently advised, I think Mr Sarabjit Singh gave the correct answer to it.

I would therefore, set aside declarations (ii)-(iv) of the Upper Tribunal and substitute a declaration that the Secretary of State had power on 9^th October 2015 to discharge AR’s conditions of bail and to arrange the removal of his electronic tag.

There remains the question of AR’s claim that there has been an infringement of the anti-discrimination provisions of the Equality Act. Mr Buttler wishes it to be remitted to the Upper Tribunal for further consideration. Miss Broadfoot submits that if AR wishes to pursue the matter he should do so by making the claim which, in the consent order, he reserved his right to make.

I agree with Miss Broadfoot and would not make any order for remission.

I agree.

I also agree.