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Government must obey court orders even if invalid, Supreme Court holds


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The Supreme Court has this morning handed down judgment in R (Majera) (formerly SM Rwanda) v Secretary of State for the Home Department [2021] UKSC 46. The appeal, as Lord Reed states in his opening sentence, raised a “question of constitutional importance”. That question was whether the government (or anyone else) can lawfully act in a manner inconsistent with a defective order of a court or tribunal without first having that order set aside or varied.

The answer, the Supreme Court has concluded unanimously, is no. 

The facts

The Home Office made a deportation order against Mr Majera in 2012 but it was not enforced. In 2015, following his release from prison, he was detained under immigration detention powers. He applied for bail to the First-tier Tribunal and Judge Narayan granted it, with a number of conditions. The Home Office had asked for a condition prohibiting Mr Majera from working “paid or unpaid”, but the judge narrowed the condition to allow voluntary work.

It was common ground that the bail notice was defective because it failed to direct that Mr Majera appear before an immigration officer at an “appointed time or place”. At the time, this was a mandatory bail condition under paragraph 22(1A) of Schedule 2 to the Immigration Act 1971. The bail notice instead ordered him to appear before his offender manager. 

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Shortly after the bail hearing ended, the Home Office issued Mr Majera with a bail notice imposing different conditions from those set by the judge. The new notice introduced a prohibition on all work, whether paid or unpaid, and a curfew condition.

Mr Majera’s solicitor (Daniel Furner at Birnberg Pierce, whose diligence in those early stages proved invaluable) wrote immediately to the Home Office challenging the new notice and contending that the tribunal’s order stood unless proceedings were brought to set it aside or to have it varied. He wrote again on two further occasions asking that the prohibition on voluntary work be withdrawn and the curfew restrictions be eased. Officials declined to do either and Mr Majera lodged a claim for judicial review.

The Upper Tribunal granted permission but stayed the proceedings to allow the Home Secretary to consider whether she ought to apply to the First-tier Tribunal to vary the judge’s order. Despite this judicial steer, she declined to take that course and defended the claim. The government’s argument was that because the judge’s bail notice did not comply with the relevant statutory provisions, it had no legal effect, and thus the Home Office could issue a replacement notice.

The Upper Tribunal disagreed, finding that the grant of bail had been “defective but valid” and remained in force until it was set aside. The Court of Appeal went the other way: it declared that the grant of bail made by the First-tier Tribunal had indeed been void and a nullity and therefore incapable of legal effect. 

The Supreme Court’s decision

Lord Reed delivered the court’s unanimous judgment allowing Mr Majera’s appeal. Central to his reasoning was the straightforward analysis that an order of a court or tribunal, even one of limited jurisdiction, is to be respected until it is properly set aside or appealed. But Lord Reed also considered that the Court of Appeal had been wrong to assume that even where a court has decided that an administrative act or decision was legally defective, the necessary result is that it has no legal effect. 

As ever, context is everything. Lord Reed cautions against what he describes as a “binary distinction” between a decision that is “valid” and one that is “void”. Ultimately all decisions and their effects have to be viewed in light of the “public interest in legal certainty, orderly administration, and respect for the rule of law” (paragraph 32).

What is clear, however, is that a decision of a court or tribunal is binding on the parties unless and until it is successfully challenged. In this case, “even assuming that the order was invalid, the Secretary of State was nevertheless obliged to comply with it”.

The rule of law

The “rule of law” has become somewhat topical in recent weeks and that is generally not a sign of a healthy discourse. As Lord Justice Nolan famously said in a previous case involving the Home Office, democratic governance and the rule of law depend on the notion that:

the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.

This case is a timely reminder that a decision of any court or tribunal, no matter its level in the judicial hierarchy, cannot be ignored by anyone: “including (indeed it may fairly be said, least of all) the executive”. Constitutionally important indeed.

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Gordon Lee

Gordon Lee is a barrister at Garden Court Chambers. He is is a leading practitioner in Public Law, Immigration and Asylum, Civil Liberties and Human Rights with an emphasis on all aspects of immigration, deportation and unlawful detention work.