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

A defect in the primary condition attached to immigration bail under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not, without clear statutory provision, make the grant of bail void. The bail remains valid but defective and should promptly be returned to the First-tier Tribunal for correction.

While valid First-tier Tribunal bail continues, an immigration officer cannot impose different bail conditions. The Secretary of State nevertheless retains the separate power under paragraph 2(5) of Schedule 3 to restrict a person’s employment or occupation, including unpaid work. Licence conditions and immigration-bail conditions have different statutory purposes. Bail conditions should therefore be stated to be without prejudice to licence conditions and should not conflict with them.

The applicant had been released from a prison sentence on licence but was immediately detained under immigration powers pending deportation. On 30 July 2015, the First-tier Tribunal granted him immigration bail. Its stated primary condition required him to appear before his Offender Manager, rather than an immigration officer.

The Secretary of State subsequently imposed reporting, curfew and employment restrictions. The applicant challenged decisions refusing to remove a prohibition on voluntary work and to relax his curfew. The Secretary of State contended that the First-tier Tribunal’s bail grant was void because its primary condition did not comply with paragraph 22(1A) of Schedule 2 to the Immigration Act 1971.

The central issue was whether that defect nullified the grant of bail and enabled the Secretary of State to impose replacement bail conditions.

1. The judicial review succeeded. The decisions of 3 December 2015 and 4 January 2016 were quashed. The Tribunal declared that the applicant remained on the bail granted by the First-tier Tribunal on 30 July 2015.

2. Paragraph 22 distinguishes the power to release a person on bail from the conditions of the recognisance. The requirement in paragraph 22(1A) that the person appear before an immigration officer is a condition of bail, albeit an important one. Construing every unlawful condition as making the entire grant void would create serious and unnecessary consequences. The defective primary condition therefore produced a valid but defective grant of bail, not a nullity.

3. The appropriate response was for the parties, particularly the Secretary of State, promptly to invite the First-tier Tribunal to correct the condition. The applicant’s appearance before his Offender Manager could not terminate the bail because it was not a valid primary condition under paragraph 22(1A). Nor did later contact with an immigration officer end the bail in the circumstances. The First-tier Tribunal’s bail consequently remained in force and required regularisation by that Tribunal.

4. While that bail continued, the Secretary of State’s purported bail restrictions had no legal effect. R (AR (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 807 concerned the different position following a valid surrender to an immigration officer.

5. Although unnecessary to the outcome, paragraph 2(5) of Schedule 3 gives the Secretary of State a freestanding power to restrict employment or occupation while a person liable to detention is not detained. That power includes unpaid work. Licence conditions pursue public-protection, anti-reoffending and resettlement aims wider than immigration-bail conditions. Bail judges should avoid incorporating licence conditions wholesale; bail should instead be expressed to be without prejudice to them, with no conflict between the two regimes.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, the Tribunal quashed the Secretary of State’s decisions and declared that the First-tier Tribunal bail remained in force.
• First-tier Tribunal (Immigration and Asylum Chamber): On 30 July 2015, it granted immigration bail subject to a defective primary condition requiring appearance before the applicant’s Offender Manager.