Asif Raza, R (on the application of) v The Secretary of State for the Home Department

A tribunal-issued immigration bail order remains subject to the First-tier Tribunal’s exclusive power of variation throughout its lifespan. The executive has no power, without clear statutory authority, to amend, terminate or substitute such an order.

Presidential bail guidance is guidance rather than instruction. It should normally be followed, but departure is permissible for good reason. A curfew and electronic monitoring condition will not ordinarily interfere disproportionately with religious manifestation. Whether there is an interference under Article 9 depends on the practical impact on the individual. Any established interference must be prescribed by law, pursue a legitimate aim and be proportionate.

The applicant sought judicial review of the Secretary of State’s failure to remove electronic monitoring and a nightly curfew imposed when the First-tier Tribunal granted him immigration bail on 7 October 2014. The First-tier Tribunal had later refused one variation application and declined jurisdiction over a further application.

The Secretary of State subsequently purported to relax the conditions, and the parties agreed that the judicial review claim could be withdrawn. The Tribunal nevertheless considered the issues because they raised important and recurring questions concerning the power to vary immigration bail orders, the status of bail guidance, and the compatibility of curfew and electronic monitoring with Article 9 ECHR, the EU Charter and indirect-discrimination law.

1. Permission to withdraw was granted and a declaration made. The substantive judicial review challenge against the Secretary of State was misconceived. The impugned bail conditions were imposed by the First-tier Tribunal, not by the Secretary of State.
2. The First-tier Tribunal has an implied statutory power to determine applications to vary the conditions of its own bail orders. Where its order has no self-limiting duration, it retains that power for the order’s lifespan. The Chief Immigration Officer cannot interfere with, revise or terminate the order. The contrary approach would violate the constitutional principle that an order of a court or tribunal remains binding unless altered by a competent court or tribunal.
3. Presidential Guidance Note No 1 of 2012 is guidance, not instruction. It promotes fair and consistent bail decision-making and should normally be followed, although departure is permissible for good reason.
4. The Article 9 analysis was additional to the dispositive bail-jurisdiction ruling. The applicant had not shown an interference with his freedom to manifest religion. He could attend substantial daytime congregational prayer, pray at home in the evening, and practise without restriction for most of the year. In any event, the conditions were prescribed by law, pursued effective immigration control, crime prevention and protection of others’ rights, and were proportionate under the Bank Mellat framework.
5. Article 10 of the EU Charter was not engaged because the bail conditions did not implement EU law. The Equality Act claim also failed, both because the Secretary of State was not the author of the measure and because the conditions were proportionate.

The declaration confirmed that, where no appeal is pending, a fresh application for bail may be made to either the First-tier Tribunal or the Chief Immigration Officer after an earlier self-limiting Tribunal order has expired.

Upper Tribunal (Immigration and Asylum Chamber): First-instance judicial review proceedings. The applicant was permitted to withdraw the claim, but the Tribunal issued a declaratory judgment under section 15 of the Tribunals, Courts and Enforcement Act 2007. Permission to appeal to the Court of Appeal was refused.