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

The Court of Appeal decided that where the First-tier Tribunal grants immigration bail in a case with no appeal pending, the bail conditions imposed by the Tribunal operate to secure the bailed person's appearance on surrender but, on surrender to an immigration officer, it is for that officer (and ultimately the Secretary of State) to determine the duration of any continuing bail and any conditions. The court held that this result follows from the statutory scheme in Schedule 2 to the Immigration Act 1971 (in particular paragraph 22) read with the relevant Tribunal rules and Presidential Guidance Note. Accordingly the Secretary of State had the power to discharge the electronic monitoring condition in this case and her decision of 9 October 2015 to vary conditions so as to cease them immediately was within power.

The court also found that a curfew condition in the present case had been imposed by or on behalf of the Secretary of State under paragraph 21 (temporary admission) rather than by the Tribunal; accordingly any challenge to that curfew should have been brought against the Secretary of State. The Upper Tribunal's wider declarations that immigration officers have no power to vary Tribunal-imposed bail conditions were set aside and replaced by a declaration that the Secretary of State had power on 9 October 2015 to discharge AR's bail conditions and arrange removal of his electronic tag.

Background and parties: AR, a Pakistani national who had entered the United Kingdom illegally in 2005 and whose initial asylum claim and later applications for leave had been refused, was detained as an immigration offender in May 2014. The First-tier Tribunal (FTT) granted immigration bail on 7 October 2014 subject to primary and secondary conditions: reporting, residence and electronic monitoring (tagging) to be arranged under section 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. AR was released and later appears to have been notified by immigration officers of an additional curfew requirement. He made repeated requests to vary or remove conditions and issued judicial review proceedings challenging the legality of tagging and curfew, relying also on the Equality Act 2010 and Convention rights.

Procedure and earlier decisions: The claim was transferred to the Upper Tribunal (UT). Before the UT hearing, the Secretary of State notified AR on 9 October 2015 that his bail conditions were varied to cease immediately and arranged removal of the electronic tag. The parties entered a consent order permitting withdrawal of judicial review while reserving rights to pursue any damages claim. The UT nevertheless determined the legal issues and held that (i) the FTT had an implied power to vary its bail orders, (ii) the Chief Immigration Officer (CIO) or Secretary of State had no power to interfere with or discharge FTT bail conditions once imposed, and (iii) the Secretary of State had acted ultra vires in discharging the tagging condition; the UT also made wider declarations about exclusive FTT power to vary bail during its lifespan.

Issues before the Court of Appeal: The appeal raised whether (i) FTT-imposed bail conditions continue in force after surrender to an immigration officer, (ii) the Secretary of State or immigration officers have power to vary or discharge bail conditions imposed by the FTT, and (iii) the Secretary of State had acted ultra vires in discharging electronic monitoring in this case. Secondary issues on the Equality Act and Convention rights were raised but not determinative in the appeal.

Reasoning: The Court analysed Schedule 2 to the Immigration Act 1971 (notably paragraph 22), the Tribunal Procedure Rules and the Presidential Guidance Note (paras 32–35, 55). The court accepted the Guidance's statement that, where no appeal is pending, the FTT should grant bail with a surrender condition and that once the bailed person has surrendered to an immigration officer the duration of further bail and consideration of variation will ordinarily be for a Chief Immigration Officer rather than the Tribunal. The court concluded that paragraph 22 authorises the FTT to secure surrender but, by necessary implication, the bail conditions imposed by the FTT do not persist in a way that prevents the immigration officer (or Secretary of State) from re-fixing, varying or discharging conditions on surrender. The Guidance provisions were treated as correctly reflecting the statutory scheme in that respect. The court therefore held that the Secretary of State was entitled to discharge the tagging condition on 9 October 2015. The court noted that the curfew in this case had been imposed by the Secretary of State (or her officers) under paragraph 21 and therefore any challenge to that curfew should properly have been directed at the Secretary of State.

Disposition and consequential matters: The Court of Appeal set aside the Upper Tribunal's declarations that the FTT retained exclusive power to vary its bail orders and that the CIO had no power to interfere, substituting a declaration that the Secretary of State had power on 9 October 2015 to discharge AR's bail conditions and remove his tag. The court declined to remit the Equality Act claim to the UT and indicated AR should pursue that claim in accordance with the consent order if he wished to do so.

The appeal was allowed. The Court of Appeal held that where the First-tier Tribunal grants bail in a case with no appeal pending, the bail conditions operate to secure surrender but, on surrender to an immigration officer, it is for the immigration officer (and the Secretary of State) to determine the duration of any continuing bail and any conditions. Therefore the Secretary of State had power on 9 October 2015 to discharge AR's bail conditions and remove his electronic tag. The Upper Tribunal's wider declarations that immigration officers have no power to vary Tribunal-imposed bail conditions were set aside and replaced accordingly. The court did not remit the Equality Act claim to the Upper Tribunal.

FTT granted bail on 7 October 2014 and refused a subsequent application to vary curfew; judicial review claim issued 7 August 2015 and transferred to the Upper Tribunal; Upper Tribunal judgments given 16 January and 5 February 2016 (declaring that the FTT retained exclusive power to vary bail and that the Chief Immigration Officer had no power to interfere); permission to appeal to the Court of Appeal granted; Court of Appeal judgment [2016] EWCA Civ 807 (29 July 2016) allowed the appeal and set aside parts of the UT declarations.