Roszkowski v Secretary of State for the Home Department

Paragraph 22(4) of Schedule 2 to the Immigration Act 1971 gives the Secretary of State a conditional power to withhold consent to release on bail where removal is required within 14 days. The power is not limited to cases involving changed circumstances or a demonstrable error by the tribunal. The Secretary of State must, however, consider the tribunal’s decision and reasons and may disagree only on a rational basis. The power remains subject to judicial review. If removal directions are cancelled, the statutory conditions cease to exist. Continued withholding of consent then makes detention unlawful, and the original grant of bail is not nullified.

The applicant was detained pending deportation. On 16 January 2015 the First-tier Tribunal granted him bail, but the Secretary of State withheld consent under paragraph 22(4) of Schedule 2 to the Immigration Act 1971. The applicant challenged the validity of the statutory scheme, the refusal of consent and his continued detention.

Permission for judicial review had been refused by Andrews J on the papers and by Cranston J on renewal. Laws LJ later directed that the matter be heard in the Court of Appeal. The removal directions were cancelled on 23 January 2015 and fresh directions were made on 9 February 2015. The central issues were the scope of the consent power, the standard governing its exercise and the effect of cancelling removal directions.

The application for judicial review was granted only to the limited extent that the applicant had been unlawfully detained from 23 January to 9 February 2015. The initial refusal of consent was lawful, and damages were to be assessed for the 17-day period of unlawful detention.

1. Construction of paragraph 22(4). The words of paragraph 22(4) of Schedule 2 to the Immigration Act 1971 confer a general power to withhold consent. The power is not restricted to a material change of circumstances or a demonstrable flaw in the tribunal’s reasoning. Its limited operation within the 14-day period before removal, and the availability of judicial review, were relevant safeguards.
2. Decision-making standard. The statutory scheme creates a two-stage process. The Secretary of State is not deciding the bail application afresh and is not the primary decision-maker. She must give proper regard and full weight to the tribunal’s decision, reasons and evidential advantage, but may disagree with the tribunal on a rational basis. The decision remains subject to ordinary public-law review.
3. Initial refusal. The Secretary of State rationally relied on the previous failure to surrender, the applicant’s imprisonment and consequent limited opportunity to abscond, the absence of a subsisting challenge to the removal certification, and the existing OASys assessment of medium risk of serious harm. The fact that the assessment had not been produced at the bail hearing did not prevent it being treated as relevant.
4. Cancellation of directions. The Secretary of State’s power was conditional on removal directions being in force and satisfying the 14-day requirement. Cancellation of the directions removed the statutory basis for continued withholding of consent. It did not nullify the tribunal’s earlier decision to grant bail.
5. Annex A. McCombe LJ additionally concluded that paragraph 30 of Schedule 2 remained effective pending appeal. The former paragraph 28 rule considered in R v Immigration Appeal Tribunal, ex p. Alghali [1984] Imm. A.R. 106 had been repealed. Section 78 of the Nationality, Immigration and Asylum Act 2002 prevented removal during an appeal but did not cancel removal directions. Underhill LJ added that a definitive same-day decision was not always required; a very short delay could be justified to obtain and consider an authoritative record of the tribunal’s reasons.

• Court of Appeal (Civil Division): Laws LJ directed that the judicial review application be heard in the Court of Appeal. The court held the initial refusal of consent lawful but granted limited relief for the subsequent period of unlawful detention.
• Administrative Court: Andrews J refused permission to apply for judicial review on the papers. Cranston J refused permission on renewed oral application on 3 June 2015.
• Permission stage: Moore-Bick LJ refused permission to appeal on 19 January 2016. Laws LJ subsequently granted permission and directed that the matter be heard in the Court of Appeal.