UPDATE: overturned by the Court of Appeal in R (On the Application Of Raza) (Pakistan) v The Secretary of State for the Home Department [2016] EWCA Civ 807.

R (on the application of Raza) v Secretary of State for the Home Department (Bail – conditions – variation – Article 9 ECHR) (IJR) [2016] UKUT 132 (IAC) is a very interesting judgment on the law of immigration bail from the President. These issues are rarely aired and it is good to see some logic and rigor being brought to bear on the issue.

The standard practice in the FTT seems to be to grant bail for a defined period ending with a condition to report to a Chief Immigration Officer. During that defined period only the FTT may vary the bail conditions, not the Home Office. However, it seems that after the end of that period, assuming that the Home Office does not re-detain and itself grants bail — as would normally be the case — then it is up to the Home Office what conditions are imposed. Any challenge to those conditions would be by way of judicial review of the decision of the Home Office.

Immigration judges need to be mindful of what they are doing when they make orders for bail. If the order for bail does not clearly end at a specified point then jurisdiction to vary the bail conditions will remain with the tribunal. This affords an easier, cheaper, quicker and more appropriate remedy than judicial review in contentious cases, so there are certainly reasons to retain jurisdiction with an ongoing order.

On the facts of this case, the judge may not have realised that the order was not finite and it seems that a subsequent judge (or clerk) declined to list a bail variation hearing on the incorrect basis that the tribunal did not have jurisdiction.

The official headnote:

(i) Presidential Guidance Note No 1 of 2012 “Bail Guidance for Judges Presiding over Immigration and Asylum Hearings” is an instrument of guidance and not instruction. The guidance should, however, normally, be followed and good reason is required for not doing so.

(ii) The First-tier Tribunal (“FtT”) is empowered to adjudicate on applications to vary the terms of its bail orders.

(iii) The FtT retains exclusive power to vary any of its bail orders during their lifespan. The Chief Immigration Officer has no power to interfere with such orders or make any other order in such circumstances.

(iv) In cases where there is no appeal pending, an application for bail can be made to either the FtT or the Chief Immigration Officer.

(v) While every case will be fact sensitive, a curfew and electronic monitoring restriction in a bail order will not normally constitute a disproportionate interference so as to infringe Article 9 ECHR, Article 10 of the Fundamental rights Charter or the Equality Act 2010.

Source: Raza, R (on the application of) v Secretary of State for the Home Department (Bail – conditions – variation – Article 9 ECHR) (IJR) [2016] UKUT 132 (IAC) (1 February 2016)