Waheed v Secretary of State for the Home Department

For the purposes of paragraph 22(4) of Schedule 2 to the Immigration Act 1971, removal directions are “in force” when they have been made, have not been withdrawn, and require removal within the statutory 14-day period. Service of the directions on the detainee is not required.

The bail scheme involves two stages. The First-tier Tribunal may decide to release a detainee on bail. Where the statutory conditions apply, the Secretary of State may then withhold consent and prevent implementation of that decision. The notice principle in R (Anufrijeva) v Secretary of State for the Home Department concerns decisions affecting entitlement or status and does not extend to administrative arrangements for physical removal.

The claimant, a Pakistani national detained pending removal, applied to the First-tier Tribunal for bail. Removal directions had been made for a flight within the relevant period, but the claimant had not been served with written notice of those directions. The tribunal initially granted bail, but the Secretary of State refused consent under paragraph 22(4) of Schedule 2 to the Immigration Act 1971, and the claimant remained detained.

The claimant sought judicial review, arguing that the directions were not “in force” until they had been set and served on him. He relied on R (Anufrijeva) v Secretary of State for the Home Department, and referred to R v Immigration Officer ex parte Shah and Wamala v Home Office. The central issue was whether service was a legal precondition to the Secretary of State’s power to refuse consent.

1. Claim dismissed. The claimant’s detention before removal was lawful and the judicial review challenge failed.
2. Following Lukasz Roszkowski v Secretary of State for the Home Department, paragraph 22 involves a potentially two-stage process. First, the First-tier Tribunal decides whether to release a person on bail. Secondly, where relevant removal directions are in force, the Secretary of State may refuse consent and thereby prevent release.
3. For paragraph 22(4), directions are “in force” where they have been made, have not been withdrawn, and require removal within the 14-day period beginning with the bail decision. Paragraph 22(4) contains no requirement that the directions have been set and served on the detainee.
4. R (Anufrijeva) v Secretary of State for the Home Department concerned an adverse decision affecting entitlement and legal status. Its constitutional notice principle did not apply to removal directions, which are administrative arrangements directed to those carrying out removal and do not alter the detainee’s entitlement or status.
5. R v Immigration Officer ex parte Shah established that defective removal directions could be challenged by the person affected, but did not decide whether service was required before directions became “in force”. Wamala v Home Office likewise did not decide that point.
6. The directions had been made on 13 February 2017 and had not been withdrawn. They required removal within the relevant period. The Secretary of State therefore had power to refuse consent, and the detention remained lawful. The application was dismissed.