In Secretary of State for the Home Department v SM (Rwanda) [2018] EWCA Civ 2770 the Court of Appeal has ruled that an invalid grant of bail by the First-tier Tribunal has no legal effect. Under the old Immigration Act 1971 bail system the First-tier Tribunal was not able to make a grant of bail for an indefinite period, so failure to impose an appearance condition meant that the grant of bail was void and of no legal effect.

In this case the tribunal judge had failed to impose a condition requiring SM to appear before the tribunal or an Immigration Officer for bail to be re-determined. Rather than bringing this to the attention of the tribunal, the Home Office took advantage of the situation to grant bail itself and imposed additional conditions. SM sought judicial review of those conditions and won before the Upper Tribunal.

The Court of Appeal held that the ultimate question when considering the consequences of a defect in the exercise of an administrative power is whether Parliament intended total invalidity to result from a failure to comply with a statutory requirement. Lord Justice Haddon-Cave ruled that Parliament did:

In the present case, FTT Judge Narayan’s grant of bail was deficient and non-compliant with sub-paragraph 22(1A) in two fundamental respects: (i) first, it specified appearance before SM’s “Offender Manager” rather than “an immigration officer”; and (ii) second, it failed to specify any surrender date, i.e. appearance “at a time and place” named in the recognizance. Accordingly, the FTT’s purported grant of bail was, therefore, totally invalid, void and unlawful.

Unfortunately, this meant that SM’s challenge to the imposition of additional bail conditions failed, but the judge did criticise the Home Office’s approach to this case:

When it became apparent that there was an issue as to the validity of the FTT’s grant of bail and the efficacy of the SSHD’s “Notice of Restriction”, it would have been good practice for the SSHD to have brought the matter quickly back before the court for appropriate resolution. In my view, it was not appropriate for the SSHD simply to sit back and assert her right to impose restrictions on SM in the face of the FTT’s extant bail order, thereby requiring the claimant after several months to have to resort to judicial review proceedings. The SSHD should immediately have sought to re-list the matter before the FTT for mention and resolution.

The particular error made by the tribunal in this case cannot happen under the Immigration Act 2016 because bail now lasts for an indefinite period until the person is re-detained, removed or granted leave to remain. However, the Court of Appeal’s decision would be relevant if the tribunal made a different error which rendered its decision invalid: for instance if it failed to impose one of the bail conditions in paragraph 2 of Schedule 10 to the Immigration Act 2016. Unfortunately, this means that the Home Office would be likely to get away with the same sharp practice again.