The as yet unreported case of R (on the application of Majera) v Secetary of State for the Home Department [2017] UKUT 163 (IAC) is a thoughtful judgment from the Upper Tribunal gives helpful guidance on the legal status of a First Tier Tribunal bail decision which may have an error on its face. It may be helpful in cases where the Secretary of State appears to ignore the views of the FTT in granting bail and superimpose her own restrictions.

The official headnote reads as follows:

(1) A defect in framing the primary condition of bail granted by the First-tier Tribunal under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not render the grant of bail void. There has, rather, been a valid but defective grant of bail. In such a situation, it is the responsibility of the parties (in particular, the respondent) immediately to draw the defect to the attention of the Tribunal, so that it can be corrected.

(2) Paragraph 2 of Schedule 3 to the 1971 Act gives the respondent power to impose restrictions on taking employment etc in respect of persons who are subject to immigration control. It is difficult to see how any condition of bail granted by the First-tier Tribunal could affect this freestanding power.

(3) Licence conditions imposed by the National Probation Service serve aims wider and different from the conditions that may be imposed by the First-tier Tribunal on a grant of bail. Rather than imposing bail conditions “in the same terms as the licence”, which is what the First-tier Tribunal’s Bail Guidance recommends, the better course is for the First-tier Tribunal to state that its conditions of bail are without prejudice to any conditions contained in the licence, and for judges to ensure there is no conflict between bail conditions and licence conditions.

The Claimant, who is on a life licence following serious convictions, had responded very well to his management by NOMS, taken up all his education  and his risk to the public had substantially reduced such that the Parole Board recommended transfer to open prison and subsequently directed release. Comprehensive licence conditions and support from the Probation Service included further rehabilitative voluntary work.

Ignoring the Parole Board’s assessment of the risk actually posed by the Claimant, the Secretary of State redetained the Claimant under the Immigration Acts pending deportation. By the time the Claimant’s bail hearing was listed before the FTT, the Secretary of State had conceded that she needed to give further consideration to whether the deportation order made while the Claimant was in prison should be revoked. The FTT granted bail subject to the licence conditions with a primary condition of reporting to the offender manager and rejected the Secretary of State’s further conditions, including a prohibition on voluntary work.

The Secretary of State ignored the FTT’s grant of bail and, on the same day as the bail hearing, issued her own ‘Notice of restriction’ which she handed to the Claimant prior to release. These included a curfew, additional reporting and a prohibition on voluntary work. The Claimant challenged the lawfulness of the restriction notices and contended that if the Secretary of State wished to vary the conditions of bail, she had to apply to the FTT, she could not so so unilaterally.

By the time the claim came before the Upper Tribunal, the Secretary of State had conceded that she had no power to impose a curfew and withdrawn the further reporting restrictions, however, she contended that the FTT’s bail order was ‘void ab initio’ that is to say a ’nullity’, because the statutory scheme required that the primary condition to report could not be to an offender manager but only to an Immigration Officer or the FTT. She relied on the Court of Appeal’s judgment in AR (Pakistan) v SSHD [2016] EWCA Civ 807.

In a careful judgment the Upper Tribunal rejected the Secretary of State’s position and held:

(i) that there was no evidence of a statutory intention to treat flawed bail orders as a ‘nullity’; §56

(ii) the FTT bail had not ceased on the claimant coming into contact with an Immigration Officer;§59

(iii) the Secretary of State was required to return to the FTT to seek a variation and could not unilaterally take over the conduct or regulation of bail: §59.

Although obiter, the Upper Tribunal observed that under schedule 3 para 2(5) to the Immigration Act 1971 the Secretary of State does have a power to impose a prohibition on employment including voluntary work. However, where FTT bail had been granted, that discretion would have to be exercised mindful of the views of the FTT as to which conditions would most serve the statutory purpose of the bail conditions – i.e. were conditions designed to secure the bailee’s appearance at the requisite time and place( see para 22(2) Schedule 2 to the 1971 Act).

This judgment is a helpful re-iteration of the principle that the Secretary of State’s views on bail conditions are subordinate to those of the Tribunal seized of a bail application and that even when FTT bail has come to an end, a decision to re-impose conditions which the FTT has found unnecessary, would have to be justified and may be subject to judicial review: §78 (quoting AR (Pakistan)).