Should Defective Court Orders Be Followed?

• Published date: 09 November 2021
• Subject Matter: Government, Public Sector, Immigration, Constitutional & Administrative Law, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

The Supreme Court answered with a resounding yes, in R (on the application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46.

Facts Of The Case

The case involved an application for judicial review of the Secretary of State's decisions to refuse to vary the restrictions she imposed on the appellant on 30 July 2015, shortly after he was granted bail by the First-tier Tribunal.

The appellant, who was subject to deportation, was granted bail by the First-tier Tribunal on the condition that he appeared before his offender manager (his supervising officer; he was on licence after he served the custodial part of his criminal sentence). The bail order further required the appellant to comply with the terms of his licence and prohibited him from entering paid employment. The appellant's licence required him to undertake only such work as was approved by his supervising officer (including voluntary work) and imposed a curfew between 8pm and 7am.

Following the grant of bail and on the same day, an immigration officer gave the appellant a notice, notifying him that the Secretary of State imposed the following restrictions on him under paragraph 2(5) of Schedule 3 to the Immigration Act 1971: that he may not enter employment, paid or unpaid, and the imposition of a curfew between 8pm and 7am. The appellant was then released.

The appellant sought to contest the Secretary of State's power to impose restrictions beyond those imposed by the judge, given that immigration bail was granted by the Tribunal. He also sought the withdrawal of the prohibition of voluntary work and for the curfew restriction to be altered to 11pm to 6am (the request having been made by his supervising officer, as those hours had been deemed appropriate for the appellant's licence at the time). These requests were refused on 3 December 2015 and 4 January 2016, respectively, and the two refusals were the subject of judicial review proceedings.

Proceedings In The Upper Tribunal And Court Of Appeal

The appellant applied for judicial review against these decisions on the grounds that they were ultra vires, as the Secretary of State has no power to attach conditions to bail when those had not been ordered by the bail judge, and that they were an irrational and disproportionate restriction of his liberty.

In her grounds of defence, the Secretary of State contended that the bail order was defective, as it failed to impose a condition on the appellant to appear before an immigration officer at a specified time and place, a...