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

Where no immigration appeal is pending, conditions attached by the First-tier Tribunal to immigration bail end when the person surrenders to an immigration officer. This follows by necessary implication from paragraph 22(1A) of Schedule 2 to the Immigration Act 1971.

If any conditions continue after surrender, the law treats them as conditions imposed by the immigration officer. They may therefore be varied or discharged by an immigration officer or the Secretary of State. Conditions imposed by the Tribunal remain necessary before surrender and provide important guidance thereafter. Any prejudicial departure from them requires justification and may be challenged by judicial review.

The First-tier Tribunal released the appellant, a Pakistani national, on immigration bail. Its conditions required residence at a specified address, weekly reporting and electronic monitoring. A curfew was subsequently imposed by or on behalf of the Secretary of State.

The appellant sought judicial review of the tagging and curfew. Although the parties agreed to withdrawal, the Upper Tribunal determined issues of wider importance and declared that the First-tier Tribunal retained exclusive power to vary its bail orders during their lifespan.

The appellant appealed with the Secretary of State's support. The central questions were how long conditions imposed by the First-tier Tribunal lasted where no immigration appeal was pending, and whether the Secretary of State or an immigration officer could vary or discharge them.

1. The appeal was allowed unanimously. The Court set aside declarations (ii)–(iv) made by the Upper Tribunal. It substituted a declaration that the Secretary of State had power to discharge the appellant's bail conditions and arrange removal of his electronic tag on 9 October 2015: [30], [33]–[34].

2. Paragraph 22(1A) of Schedule 2 to the Immigration Act 1971 uses the established language of surrender to bail. Where no immigration appeal is pending, bail granted by the First-tier Tribunal ends when the person surrenders to the specified immigration officer. The absence of express words terminating the conditions did not prevent that conclusion, which arose by necessary implication from the statutory language: [26]–[27].

3. There is consequently no category of First-tier Tribunal bail of indefinite duration in such a case. If conditions imposed by the Tribunal continue after surrender, they are treated in law as conditions imposed by the immigration officer. They may then be varied by another immigration officer or discharged by the Secretary of State: [27], [29].

4. Secondary conditions retain an important function. They govern the period between release from detention and surrender. They also guide the immigration officer, who is likely to continue them. A departure prejudicial to the person bailed must be justified and may be amenable to judicial review: [28].

5. The curfew had not been imposed by the First-tier Tribunal. Any request to discharge it was therefore properly directed to the Secretary of State. If the curfew was authorised, she could vary or discharge it; if it was unauthorised, it could be challenged by judicial review: [18]–[21].

6. The Court declined to determine alternative arguments concerning temporary admission under paragraph 21, relaxation of conditions requested by the Secretary of State, automatic lapse of bail, or paragraph 24: [29]. It also refused to remit the reserved discrimination claim. The appellant could pursue that claim through the procedure preserved by the parties' consent order: [31]–[32].

1. Court of Appeal (Civil Division): The appeal was allowed in [2016] EWCA Civ 807. Declarations (ii)–(iv) of the Upper Tribunal were set aside and replaced by a declaration confirming the Secretary of State's power to discharge the bail conditions and arrange removal of the electronic tag. Remission of the discrimination claim was refused.

2. Upper Tribunal (Immigration and Asylum Chamber): After the parties had agreed that the judicial review claim could be withdrawn, the Tribunal determined issues it regarded as important. It declared, among other things, that the First-tier Tribunal retained exclusive power to vary its bail orders throughout their lifespan and that a Chief Immigration Officer could not interfere with them. No neutral citation is stated in the judgment.

3. First-tier Tribunal: The Tribunal granted immigration bail subject to residence, reporting and electronic-monitoring conditions. It later refused one variation application and declined jurisdiction over another.