The Court was asked whether the Government 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 order. The appellant had been granted immigration bail with conditions, but these conditions were varied on the order of the Respondent. The Tribunal had not complied with the necessary requirements under the 1971 Act.
Held: The appeal was allowed, and the order placing the claimant on bail under conditions was restored.
A court order must be obeyed unless and until it has been set aside or varied by the court or unusually by legislation. This applies to court orders whether they are valid or invalid, regular or irregular. Court orders should not be ignored by anyone, including the government.
The Court of Appeal did not apply that decided, but on the basis of unlawful administrative acts and decisions, held that the Bail Order had no legal effect, and the Secretary need not comply with it. Even in the context of administrative acts and decisions, it is an over-simplification to say that an unlawful act has no legal effect at all. There are many circumstances in which an unlawful administrative act has legal consequences. Here the court was concerned with not an unlawful administrative act but with an order of a tribunal. Different issues principles applied.
The allegation that the Bail Order was invalid was not a relevant defence to Mr Majera’s application for judicial review. With no other basis for the Court of Appeal’s reversal of the decision of the Upper Tribunal, and with no other grounds, the appeal succeeded.
Even had any invalidity of the Bail Order had been relevant, the SS had opportunity to challenge the Bail Order if she thought it was defective: she might have raised it with the First-tier Tribunal, or the Upper Tribunal, or sought judicial review.
Lord Reed, President, Lord Sales, Lord Leggatt, Lord Burrows, Lady Rose
[2021] UKSC 46, UKSC 2020/0008
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Immigration Act 1971
England and Wales
Citing:
Cited – Gedi, Regina (on The Application of) v Secretary of State for Home Department CA 17-May-2016
The court considered the power of the Secretary of State for the Home Department and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion . .
At UTIAC – Majera, Regina (on The Application of) v Secretary of State for The Home Department (Bail Conditions: Law and Practice) UTIAC 13-Mar-2017
(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 . .
Cited – The Secretary of State for The Home Department v SM (Rwanda) CA 11-Dec-2018
. .
Cited – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Durayappah of Chundikuly, Mayor of Jaffna v Fernando and Others PC 15-Dec-1966
(Ceylon) . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Percy and Another v Hall and Others CA 10-May-1996
The claimants, demonstrators at Menwith Hill Station, asserted that repeated arrests for trespass were made under unlawful byelaws. Iparticular they said that the restrictions on trespass were unlawful, since the area was not clearly defined. . .
Cited – Mossell (Jamaica) Ltd (T/A Digicel) v Office of Utilities Regulations and Others PC 21-Jan-2010
(Jamaica) Lord Phillips, after referring to the speech of Lord Irvine in Boddington, rejected the submission that the principle in Boddington applies only within criminal prosecutions, adding: ‘What it all comes to is this. Subordinate legislation, . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Cited – Fishermen and Friends of The Sea v The Minister of Planning, Housing and The Environment PC 27-Nov-2017
(Court of Appeal of Trinidad and Tobago) . .
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
Cited – Kruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Cited – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – Johnson v Walton 1990
There was a continuing obligation to obey a court order until it was discharged. . .
Cited – Crown Prosecution Service v T Admn 5-Apr-2006
The prosecutor appealed after the district judge had at first granted an anti-social behaviour order, but had later thought it too wide and that it was unenforceable and void.
Held: the district judge had exceeded his powers. There were . .
Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte AX London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .
Cited – KW and Others v Rochdale Metropolitan Borough Council CA 20-Oct-2015
The court heard an appeal as to care directions given under the 2005 Act, and in particular whether they infringed the patient’s human rights. The judge of the Family Division took the view that a decision of the Court of Appeal was ultra vires.
Cited – Kirby, Regina v CACD 21-Feb-2019
Breach of non-molestation order that was subsequently set aside because of a procedural irregularity.
Held: The appeal failed. Singh LJ based the decision on ‘a long-standing principle of our law that there is an obligation to obey an . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.668647 br>