The Secretary of State for the Home Department v SM (Rwanda)

A grant of immigration bail must comply with the statutory mechanism governing it. Under paragraph 22(1A) of the Immigration Act 1971, the recognizance must require appearance before an immigration officer at a specified time and place. Those are primary conditions, distinct from permissive secondary conditions. Failure to impose either primary condition makes the purported grant wholly invalid and void. A grant without a surrender date is also impermissibly non-finite. Once bail is void, the Secretary of State may impose restrictions under paragraph 2(5) of Schedule 3. Where validity is in doubt, prompt recourse to the tribunal is good practice.

SM, a Rwandan national detained under immigration powers following a deportation order, was purportedly released on bail by the First-tier Tribunal on 30 July 2015. The bail form required him to appear before his offender manager and did not specify a time and place for surrender. The Secretary of State then issued written restrictions concerning reporting, residence, electronic monitoring, curfew and employment under the Immigration Act 1971.

The Upper Tribunal held that the First-tier Tribunal’s bail remained valid and that the Secretary of State’s restrictions had no legal effect, while quashing two later decisions. The Secretary of State appealed. The central issue was whether failure to comply with paragraph 22(1A) rendered the grant of bail invalid and enabled the Secretary of State to impose her own restrictions.

1. Appeal allowed. The First-tier Tribunal’s purported grant of bail was ultra vires, void and a nullity.
2. Statutory construction. Statutory bail provisions were to be construed strictly and restrictively. The question whether non-compliance produced total invalidity was one of statutory construction, not rigid classification as mandatory, directory, void or voidable. The court adopted a two-stage inquiry: first, whether Parliament intended total invalidity; and, if not, whether invalidity nevertheless followed in the circumstances. See North Somerset District Council v Honda Motor Europe Ltd & Others [2010] EWHC 1505 (QB) and R v Soneji [2006] 1 AC 340.
3. Primary conditions. Paragraph 22(1A) of the Immigration Act 1971 required a recognizance conditioned on appearance before an immigration officer at a named time and place. These were mandatory primary conditions. They were distinct from the permissive secondary conditions under paragraph 22(2). Failure to impose either primary condition resulted in total invalidity. Here, the order required appearance before an offender manager and specified no surrender time or place. The distinction between taking bail and fixing conditions did not alter the result.
4. Non-finite bail and restrictions. The absence of a surrender date also purported to create non-finite bail, which was impermissible under the reasoning in R (AR (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 807. Since the First-tier Tribunal’s order was void, the Secretary of State was not barred from imposing restrictions under paragraph 2(5) of Schedule 3. Those restrictions were not technically bail conditions.
5. Qualification and practice. Underhill LJ did not regard the observations in B (Algeria) v SSHD (No.2) [2018] AC 418 as applicable to the primary conditions, although he agreed that the appeal should be allowed. The court unanimously considered that the Secretary of State should have promptly restored the matter to the First-tier Tribunal for resolution rather than relying unilaterally on the notice of restrictions.

• Court of Appeal (Civil Division). On 11 December 2018, allowed the Secretary of State’s appeal and held that the First-tier Tribunal’s purported bail order was void.
• Upper Tribunal Immigration and Asylum Chamber. On 13 March 2017, held that SM remained on First-tier Tribunal bail and quashed two Secretary of State decisions concerning employment restrictions and curfew.
• First-tier Tribunal. On 30 July 2015, purported to grant SM bail, but failed to require appearance before an immigration officer and failed to specify a surrender time and place.