(1) A defect in framing the primary condition of bail granted by the First-tier Tribunal under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not render the grant of bail void. There has, rather, been a valid but defective grant of bail. In such a situation, it is the responsibility of the parties (in particular, the respondent) immediately to draw the defect to the attention of the Tribunal, so that it can be corrected.
(2) Paragraph 2 of Schedule 3 to the 1971 Act gives the respondent power to impose restrictions on taking employment etc in respect of persons who are subject to immigration control. It is difficult to see how any condition of bail granted by the First-tier Tribunal could affect this freestanding power.
(3) Licence conditions imposed by the National Probation Service serve aims wider and different from the conditions that may be imposed by the First-tier Tribunal on a grant of bail. Rather than imposing bail conditions ‘in the same terms as the licence’, which is what the First-tier Tribunal’s Bail Guidance recommends, the better course is for the First-tier Tribunal to state that its conditions of bail are without prejudice to any conditions contained in the licence, and for judges to ensure there is no conflict between bail conditions and licence conditions.
‘The respondent’s contention that the judge’s grant of bail was a nullity does not mean that a person may ignore a bail decision of the tribunal which he or she considers invalid. As a judicial action (albeit by a body of limited jurisdiction) the tribunal’s order has effect unless and until a court or tribunal seized of jurisdiction in respect of the matter decides that it was invalid.’
A grant of bail was of no legal effect was liable to have serious consequences, and inferred that it could not have been Parliament’s intention that defects in the grant of bail should render it void. Rather, there was a valid but defective grant of bail. The defect could be corrected by the judge on its being drawn to his attention, as the Secretary of State should immediately have done. Since the grant of bail on 30 July 2015 was valid, albeit defective, it remained in force. Its defective nature could be remedied by the First-tier Tribunal. It followed that the restrictions purportedly imposed by the Secretary of State were of no effect.
[2017] UKUT 163 (IAC)
Bailii
England and Wales
Cited by:
At UTIAC – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.588797
