Representing the Appellant Mr Majera, Amanda Weston QC of Garden Court Chambers led Gordon Lee of Garden Court Chambers and Anthony Vaughan of Doughty Street Chambers instructed by Daniel Furner of Birnberg Peirce.
Laura Dubinsky of Doughty Street Chambers represented the Intervener, Bail for Immigration Detainees and was led by Raza Husain QC of Matrix Chambers, with Shane Sibbel of Blackstone Chambers, and instructed by Herbert Smith Freehills LLP.
The Supreme Court has handed down judgment this morning in a case of ‘constitutional importance’ concerning the Home Office’s non-compliance with a tribunal bail order.
The position of the Home Secretary had been that because, in her opinion, the tribunal’s order was legally defective, she was not obliged to comply with it. Allowing Mr Majera’s appeal, the President of the Supreme Court, Lord Reed, firmly rejected the Home Office’s position and re-affirmed the importance of compliance with the rule of law and the principle that judicial orders must be obeyed unless and until set aside by a court.
Mr Majera had been granted bail by the First Tier Tribunal in terms which, the parties agreed, failed to state the primary bail condition that Mr Majera must report to an immigration officer. The Secretary of State purported to release Mr Majera under a different, and more stringent, set of conditions on the basis that the Secretary of State was entitled to treat the bail order as invalid and of no effect. The Secretary of State’s ‘notice of restrictions’ included imposition of a curfew, even though the FTT had not imposed such a condition. Mr Majera challenged the notice of restrictions by judicial review and the Upper Tribunal upheld his claim.
On appeal to the Court of Appeal the Secretary of State argued that she never had to obey the FTT’s order, which was so defective that it was outside the Tribunal’s jurisdiction. The Court of Appeal upheld the Secretary of State’s appeal and declared that the bail order was void from the outset and a nullity; and therefore she was entitled to ignore it even though she had failed to make any application to vary or set it aside (SM (Rwanda) v Home Secretary [2018] EWCA Civ 2770).
Mr Majera appealed to the Supreme Court on the basis that the Court had applied authorities which had no bearing on the question of obedience to court orders; and the Court of Appeal had wrongly categorised the FTT’s decision as administrative rather than judicial.
Allowing the appeal, the Supreme Court firmly reiterated the principle that court orders, even those which are considered by a party to be defective, are to be obeyed unless or until varied or set aside by a court of competent jurisdiction. The Secretary of State could not act inconsistently with the order but was bound to obey it in circumstances where she had failed to apply to vary it or challenge it. It was therefore not open to the Court of Appeal to declare the order invalid. Any court on a judicial review considering whether a remedy should be granted as a result of the defect in the order would be bound to consider a host of factors including whether there was delay in the challenge and whether a discretionary remedy was appropriate in all the circumstances. The Court of Appeal’s approach had shortcut both statutory and procedural bars to granting a remedy to the Secretary of State.
The Court also made a number of observations about the appropriate procedure where a party relies on the invalidity of a measure to justify their failure to comply with it.
The judgment (neutral citation [2021] UKSC 46) can be accessed here.
