A First-tier Tribunal judge granted immigration bail and did not ban unpaid work. The Home Secretary nevertheless prohibited both paid and unpaid employment. The Supreme Court held that she could not lawfully disregard the tribunal’s order, even if it was defective, without first having it varied or set aside.
Mr Majera was detained under immigration powers after the Parole Board directed his release on licence. In July 2015 the First-tier Tribunal granted him bail.
The tribunal refused the Secretary of State’s request for a blanket employment ban. The judge incorporated the conditions of Mr Majera’s criminal licence, which permitted work approved by his supervising officer. The order also required attendance before his offender manager.
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Later that day an immigration officer notified him that he was being released, but that the Secretary of State was imposing restrictions: no paid or unpaid employment, and a curfew from 8pm to 7am. His solicitors said that she had no power to add restrictions which the judge had not imposed, and that she should seek a variation or bring judicial review; there was no appeal. Her position later shifted. She was no longer arguing that tribunal bail had ended, or that her notice was consistent with the order.
On 3 December 2015 she refused to withdraw the ban on voluntary work. On 4 January 2016 she refused a request to change the curfew. The appellant sought judicial review of those refusals. The Secretary of State then said that the bail order failed to comply with paragraph 22(1A) of Schedule 2 to the Immigration Act 1971, because it required him to appear before an offender manager rather than an immigration officer at a specified time and place. She argued that the grant of bail was therefore void, so she could impose restrictions under paragraph 2(5) of Schedule 3 on a person liable to detention who was not detained. She conceded that she had no power to impose the curfew.
The Upper Tribunal and the Court of Appeal
Upper Tribunal Judge Peter Lane quashed both refusals and declared that the appellant remained on the bail granted on 30 July 2015. The tribunal held that a bail decision cannot be ignored merely because someone considers it invalid. A defective grant remained effective until a court or tribunal with jurisdiction decided otherwise, and the judge could have corrected the defect if it had been drawn to his attention. In observations expressly not necessary to the decision, it also said that an employment condition was outside the proper purpose of paragraph 22(2), while paragraph 2(5) could still allow the Secretary of State to restrict employment during bail.
The Secretary of State appealed only against the part of the decision concerning 3 December 2015. The Court of Appeal allowed the appeal, quashed the Upper Tribunal’s declaration and declared the grant of bail void and a nullity. Haddon-Cave LJ treated the validity of the bail order, rather than the lawfulness of the Secretary of State’s decision, as the central issue. He reasoned that non-compliance with paragraph 22(1A) made the grant unlawful, and that an act pronounced unlawful is then recognised as having had no legal effect. On that view, there had been no order to respect. The court said that returning the matter to the First-tier Tribunal would have been good practice, and Underhill and Asplin LJJ agreed that the Secretary of State had not handled it well. Underhill LJ noted that the implication was that the appellant had been unlawfully at large since 30 July 2015.
Why the order had to be obeyed
Lord Reed, with whom Lord Sales, Lord Leggatt, Lord Burrows and Lady Rose agreed, said that the appeal raised a question of constitutional importance: whether anyone, including the Government, may act inconsistently with a defective judicial order without first obtaining its variation or setting aside.
The Court of Appeal’s starting point was wrong. Even for administrative acts and subordinate legislation, it is too simple to say that a judicial pronouncement of unlawfulness means the act never had any legal effect. Until a competent court intervenes, an unlawful act may remain effective, and a court may withhold relief. Lord Reed considered that the authorities relied on by the Court of Appeal, including Hoffmann-La Roche and Boddington, did not establish the absolute rule applied below.
Those cases also concerned legislation or administrative measures, not a court or tribunal order. A different principle applies. A person who knows of an order must not disobey it, whether it is null or valid, regular or irregular, and must instead ask the court to discharge it. Lord Reed treated this as a rule of law, not merely good practice: a court decision is binding and cannot be ignored by the executive. The duty extends to orders described as null, and it applies to courts and tribunals of limited as well as unlimited jurisdiction. The First-tier Tribunal in any event had jurisdiction to determine the bail application.
The First-tier Tribunal had jurisdiction to decide the bail application. Even if the release order contained a defect, the Secretary of State had to respect it until a court or tribunal changed it.
The form of the challenge
Lord Reed added that the Secretary of State should not have been permitted to attack the tribunal order merely by defending judicial review of her own later decision. She had been a party to the bail hearing, and the order required her to release the appellant on its conditions. She could have asked the First-tier Tribunal to correct the defect or sought permission to apply for judicial review. A direct challenge would have raised questions of permission, the proper tribunal, delay, and the consequences of treating the order as void, including the suggestion that the appellant had been unlawfully at large for more than three years. Those procedural questions did not need to be decided, because the alleged invalidity was not a relevant defence.
Verdict: The Supreme Court unanimously allowed Mr Majera’s appeal. The Secretary of State could not defend her refusal to withdraw the ban on voluntary work by asserting that the bail order was invalid. The Court did not have to decide whether the order was defective.
