R (on the application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department

A court or tribunal order must be obeyed unless and until it is varied or set aside. This rule applies even where the order is defective, irregular, allegedly void or made by a court of limited jurisdiction. It binds the executive as firmly as any other person.

A public authority therefore acts unlawfully when it takes action inconsistent with an extant judicial order. The alleged invalidity of that order is no defence. The authority must instead seek variation, setting aside or judicial review through the appropriate procedure. Rules about the consequences of unlawful administrative acts do not displace this constitutional duty to obey judicial orders.

The appellant was detained pending deportation under the Immigration Act 1971. The First-tier Tribunal granted bail, but its order directed him to report to his offender manager rather than an immigration officer. The Secretary of State treated the order as ineffective and imposed additional employment and curfew restrictions.

The Upper Tribunal, in R (Majera) v Secretary of State for the Home Department (bail conditions: law and practice) [2017] UKUT 00163 (IAC), held that the bail order remained effective until corrected or set aside. The Court of Appeal reversed that decision in Secretary of State for the Home Department v SM (Rwanda) [2018] EWCA Civ 2770; [2019] Imm AR 714, declaring the bail order void.

The central question was whether the Secretary of State could lawfully act inconsistently with an extant but allegedly defective judicial order without first obtaining its variation or setting aside.

Appeal allowed unanimously. Lord Reed delivered the judgment, with which Lord Sales, Lord Leggatt, Lord Burrows and Lady Rose agreed.

1. It is a well-established constitutional rule that an order of a court or tribunal must be obeyed unless and until it is varied or set aside. The obligation is a rule of law, not merely good practice. It applies to an order alleged to be null, irregular or void, and to orders of courts or tribunals possessing limited jurisdiction. Chuck v Cremer (1846) 1 Coop temp Cott 338; 47 ER 884 followed.

2. The First-tier Tribunal possessed jurisdiction under paragraph 22 of Schedule 2 to the Immigration Act 1971 to determine the bail application. Even assuming that its order was invalid because of the form of the reporting condition, the Secretary of State remained obliged to comply with it. Her action inconsistent with the order was unlawful. The order's alleged invalidity was therefore no defence to the appellant's judicial review claim.

3. The Court of Appeal had mistakenly treated principles concerning unlawful administrative acts and subordinate legislation as governing a judicial order. Cases such as F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 and Boddington v British Transport Police [1999] 2 AC 143 concerned different legal questions. Judicial orders derive their binding force from principles necessary to the rule of law, finality, legal certainty and the orderly administration of justice.

4. The description of every unlawful administrative act as wholly void and devoid of legal effect is, in any event, an over-simplification. Before judicial intervention, an unlawful act may remain effective. Even after invalidity is established, its consequences may depend on legislation, the court's remedial discretion, legal certainty, orderly administration, third-party reliance and the public interest. These observations explained the wider administrative-law context but were not needed to determine the appeal.

5. The Secretary of State could not mount a challenge to the bail order as a defence to proceedings concerning her own inconsistent decision. She should have asked the First-tier Tribunal to correct or vary the order, or brought a properly constituted judicial review claim. The wider procedural observations concerning permission, delay, hardship and good administration were obiter.

The appeal was allowed because no other basis was advanced for upholding the Court of Appeal's reversal of the Upper Tribunal.

1. United Kingdom Supreme Court: In R (on the application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46, the court unanimously allowed the appellant's appeal.
2. Court of Appeal: In Secretary of State for the Home Department v SM (Rwanda) [2018] EWCA Civ 2770; [2019] Imm AR 714, the court allowed the Secretary of State's appeal, quashed the Upper Tribunal's declaration and declared the First-tier Tribunal's grant of bail void.
3. Upper Tribunal: In R (Majera) v Secretary of State for the Home Department (bail conditions: law and practice) [2017] UKUT 00163 (IAC), the tribunal quashed the Secretary of State's decisions and declared that the appellant remained on bail under the First-tier Tribunal's order.
4. First-tier Tribunal: The tribunal granted the appellant bail on 30 July 2015 subject to specified conditions.