Roszkowski v Secretary of State for the Home Department [2017] EWCA Civ 1893

[2017] EWCA Civ 1893Case No C4/2015/1843
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE CRANSTON
CO/259/2015
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/11/2017
Before
LORD JUSTICE McCOMBELORD JUSTICE UNDERHILLLORD JUSTICE FLAUX
Between
LUKASZ ROSZKOWSKIApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Christopher Jacobs and Katherine Olley (instructed by Ahmed Rahman Carr LLP) for AppellantJames Eadie QC and Carine Patry (instructed by the Government Legal Department) for RespondentHearing Hearing date: 12 October 2017
Judgment ApprovedLord Justice McCombe:
[1]This is an application for judicial review which, by an order of 9 August 2016, Laws LJ directed should be heard in this court rather than in the Administrative Court. That order superseded the Lord Justice’s earlier order of 26 May 2016 by which he had granted to the applicant, Lukasz Roszkowski, permission to appeal from the order of Cranston J of 3 June 2015 refusing him permission to apply for judicial review.[2]The case concerns the application of section 4 of, and paragraph 22 of Schedule 2 to, the Immigration Act 1971. Under those provisions, a person detained pending deportation may apply to a Chief Immigration Officer or to the First-tier Tribunal for release on bail. Paragraph 2(4A) of Schedule 3 to the Act applies paragraph 22 of Schedule 2 to such cases. I shall have to refer to other provisions of the Act and schedules later in this judgment, but the important provision for this application is to be found in paragraph 22(4) of the Schedule. It is in these terms:
“(4) A person must not be released on bail in accordance with this paragraph without the consent of the Secretary of State if- (a) directions for the removal of the person from the United Kingdom are for the time being in force, and (b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.” (a) directions for the removal of the person from the United Kingdom are for the time being in force, and (b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.”
[3]In the present case, following the making of a deportation order against the applicant on 9 December 2014, directions were set for his removal from the United Kingdom on 26 January 2015. On 16 January 2015, the applicant applied to the First-tier Tribunal (Immigration Judge Powell), sitting at Newport, for bail. After hearing evidence from the applicant’s proposed surety (his mother) and submissions from the advocates for the applicant and respondent, the judge decided that bail should be granted. There was a short break in proceedings in which the respondent’s representative took instructions over the telephone from the relevant official (a civil servant of Grade 5 in the respondent’s department). On behalf of the respondent, the official concerned refused consent to the applicant’s release, pursuant to paragraph 22(4) of Schedule 2. This decision was communicated to the judge who commented, “A civil servant without hearing the evidence that I have heard, has decided to disregard my views”. The reasoning behind the refusal of consent was more fully set out in a letter of 19 January 2015 to which I will return.[4]In paragraph 1 of the Amended Statement of Facts and Grounds, the applicant seeks judicial review of:
“(i) The lawfulness of Section 7 of the Immigration Act 2014 and the attendant amendment to paragraph 22 of schedule 2 of the Immigration Act 1971. (ii) The Secretary of State’s detention of the Claimant from 16 January 2015 after Immigration Judge Powell granted bail to the Claimant; (iii) The Secretary of State’s refusal to give her consent under section 7 of the Immigration Act 2014 upon Immigration Judge Powell granting bail to the Claimant.”
The relief claimed was set out extensively in paragraph 2. At the hearing, it was not clear the extent to which the various heads of relief claimed remained live. Therefore, we asked Mr Jacobs for the applicant to inform us in writing which of these heads were still being pursued. Mr Jacobs kindly responded by letter of 16 October 2017, but in doing so, rather than limiting and clarifying the claim within the parameters of paragraph 2, he formulated seven proposed declarations in very different form from those identified in the Statement of Facts and Grounds. In the circumstances, I do not propose to say anything further about appropriate relief at this stage of my judgment.[5]Permission to apply for judicial review was refused on consideration of the papers by Andrews J and on renewed oral application by Cranston J. In short, both judges considered that paragraph 22(4) simply meant what it said. They decided that the respondent was entitled to withhold consent to the applicant’s release and that the paragraph was not unlawful. By order of 19 January 2016, Moore-Bick LJ refused permission to appeal. After the renewed application for permission to appeal, made at an oral hearing, Laws LJ initially granted permission to appeal. However, pursuant to his subsequent order, to which I have referred, the applicant now has permission to apply for judicial review and we have heard his application.[6]The background facts of the case are as follows.[7]The applicant is a Polish national who came to this country in 2007. In November 2012 he was convicted in the Magistrates Court of possession of a controlled drug of class B (cannabis) and of failure to surrender to custody at the appointed time. For these offences, he was fined. In June 2013 he was convicted of robbery and wounding with intent to cause grievous bodily harm and was sentenced to 4 years imprisonment for each offence to be served concurrently, giving rise to a total sentence of four years imprisonment. On 31 July 2013 he was given notice of the respondent’s intention to make a deportation order against him in accordance with regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006. After consideration of representations, the deportation order was made on 9 December 2014 and the respondent authorised the detention of the applicant pending removal. On 22 December, the applicant lodged an appeal against the deportation order.[8]The written application for bail was dated 21 December 2014 and on 7 January 2015, notice of hearing of the application was given for 16 January 2015. On the 15 January, the respondent sent to the Tribunal and to the applicant’s solicitors a “Bail Summary”. In that summary, the overarching considerations for the opposition to bail were summarised in the first paragraph of the stated reasons in these terms:
“The Home Office regards protection of the public as paramount. It is Home Office policy that in cases where a person is being deported because of a criminal conviction, the starting point still remains that the person should be released on bail unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the “deportation criteria”) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.”
[9]There followed the statement that the decision had been made that the applicant’s presence in the UK was not conducive to the public good. The convictions were referred to and it was stated that, “The applicant has been assessed as a medium risk of serious harm to others…” It was said that he was to be re-assessed for re-offending on release. However, it was submitted that he was a repeat offender with a previous failure to surrender to custody. He presented, therefore, “a clear risk of reoffending”. It was argued that the nature of his offences and the need to protect the public from further offences were important factors on the issue of the grant of bail. The adequacy of the proposed bail surety was also challenged.[10]We are told that, after hearing submissions, the judge retired for a lengthy period. On return he gave detailed reasons for deciding that bail should be granted. He provided the respondent’s presenting officer with a handwritten note of the reasons. The hearing was adjourned while the presenting officer took instructions over the telephone. The applicant’s solicitor, who was present at hearing, says in her witness statement, which is not challenged, that the presenting officer told the judge on return as follows:
“(i) That she had spoken by telephone to a Mr Andrew Jackson a grade five civil servant in the Home Office (ii) That he [Mr Jackson] had noted the applicant’s probation officer’s comments (iii) That he had also noted that the Applicant’s first offence was a caution for possession of a weapon and the second conviction involved drug use in 2012 (iv) That alcohol misuse was not an excuse for the conduct of the Applicant (v) That the law is that the Applicant can be deported and returned.”
[11]The judge’s written reasons for his decision, dated the same day, need to be set out fully. They were these:
“Removal directions are set for 26th January 2015. The setting of removal directions within fourteen days of this hearing is not, of itself, reason to continue to detain the Applicant. Detention is lawful if removal is Imminent [sic] as it is in this case, and there are substantial grounds to believe the Applicant is likely to abscond or re-offend, and that risk cannot be mitigated sufficiently by conditions on release. Absconding: I am not satisfied there are substantial grounds to believe the Applicant is likely to abscond for the following reasons. 1. He is able to live with his Mother in an address assessed and approved by the Probation Service. 2. His whereabouts can be determined by the imposition of an electronic tag. 3. His Mother is credible, hard working surety fully aware of her son’s character. I find her to be an appropriate surety and I accept her offer of six thousand pounds, a substantial sum to ensure his compliance with conditions of bail. 4. Although the Applicant committed offences previously while living with his Mother, I accept that the impact of a four year prison sentence on him, and her, has been profound. I am satisfied that the fear of further punishment underpins the willingness of the Applicant and his Mother to ensure that his behaviour will be monitored and appropriate. 5. The Applicant’s failure to surrender to bail, although important, took place in 2012 and was treated by the magistrates as worthy of no separate penalty. This conviction does not lead me to believe he is likely to abscond but is a ground to justify an electronic tag. 6. The Applicant has every incentive not to abscond or breach the terms of his release as he is actively seeking to challenge his deportation and the certification under Regulation 24AA of the 2006 regulations in the High Court. The risk of re-offending: I am not satisfied that there are substantial grounds to believe the Applicant is likely to re-offend for the following reasons. 1. The Applicant’s previous convictions (prior to the index offence) were not serious, being punished by way of fine. They were of a totally different character to the index offence. 2. The index offence, although serious, was apparently fuelled by drink. The Applicant has completed approved rehabilitation courses in drink and drugs and it is reasonable to have confidence in the effectiveness of courses provided to prisoners. 3. The Secretary of State has not provided any evidence to show that the Applicant’s risk of re-offending has been assessed or other evidence to corroborate the assertion that the Applicant poses a medium or high risk of harm. Plainly, the risk of harm to the public arises only where there is a risk of re-offending. Such risk has not been demonstrated. 4. The arrangements for bail are the incentive for the Applicant to avoid further trouble mitigates the risk, if any, of re-offending. 5. The Applicant will be released on license [sic] and is subject to recall provisions. I note that the Probation Service has not sought any additional conditions on the Applicant’s license [sic]. This helps me to put in to context the risk he poses. As such I am not satisfied that this man, having lived in the United Kingdom for seven years, with the antecedent history I have described, is likely to abscond or re-offend between today and his removal to Poland on 26th January 2015 or that there exist substantial grounds to so believe.”
[12]On 19 January 2015, the respondent provided her written reasons for the refusal of consent to release, over the signature of an official of “Immigration Enforcement”. In this document, the respondent recited the history of the applicant’s offending and the making of the deportation order. She set out a summary of the Bail Summary, but adding a feature that had been missing from that document as placed before the judge, namely the fact of the existence of an OASys assessment which reported the medium risk of serious harm to the public, specifying the risks as “use of violence and weapons against persons”. It was said that the judge’s reasons for granting bail had been carefully considered by the respondent. The substance of the reasons appear in the last three paragraphs of the letter as follows:
“On the issue of whether you are an abscond risk, the Secretary of State does not accept all the reasons given by the judge. For example, the judge places reliance on the fact that your offence of failing to surrender to custody was a long ago as 2012. The judge appears to have failed to consider that shortly after your 2012 conviction, you were arrested for the serious and violent offences for which you received a four year sentence. On that basis, there has been little opportunity for any further absconding. Further, the judge notes that you have “every incentive” not to abscond as you are challenging your deportation and certification in the High Court. This is incorrect: there is no challenge to your certification and your deportation is scheduled to take place on Monday 26th January 2015. The fact that you are being removed from the UK imminently creates a significant abscond risk. On the issue of re-offending, the judge appears to have concluded that the Secretary of State had failed to provide evidence at the hearing that you had been assessed as at a medium risk of harm. Whether evidence was provided or not, as you are no doubt aware that you have previously been assessed as being at medium risk of serious harm to others and the Secretary of State has taken this into account as highly relevant to your risk of re-offending. As set out above, the Secretary of State has carefully considered the judge’s reasons, and all the relevant facts of your case. She has considered the proposed surety in the round and the fact that you have completed rehabilitative courses in prison. She has also taken into account that your removal is now imminent (Monday 26th January 2015). She takes the view that you have been convicted of very serious offences, that your risk of re-offending (and therefore risk of harm to the public) remains at the level assessed and that you have previously failed to surrender to custody. She does not consider electronic tagging to provide a sufficient safeguard. In all the circumstances, she has taken the decision to refuse to consent to bail in your case.”
[13]It will be seen that the judge’s decision and the respondent’s letter both refer to a challenge to the respondent’s certification of the removal directions under Regulation 24AA of the Immigration (European Economic Area) Regulations 2006. The judge, it appears, was informed of the intended challenge but no proceedings had been issued either at the date of the hearing or at the date of the respondent’s letter. Such a challenge was, however, made by Judicial Review claim form issued in the Upper Tribunal on 22 January 2015 (JR/828/15). Two days earlier, and the day after the date of respondent’s letter, on 20 January 2015, the present proceedings were issued, seeking review of the respondent’s refusal of her consent to the release on bail.[14]Mr Jacobs informed us that it was at a hearing on 20 January 2015, before Lang J, when the applicant was applying for interim relief in respect of the bail issue, that the respondent’s representative handed over the respondent’s reasons letter of 19 January. In view of the challenge to the certification of removal, which had been issued on 22 January, the respondent cancelled the removal directions on 23 January. However, on the same day, Upper Tribunal Judge Gleeson refused permission to apply for review of the removal directions. There were further flurries of activity in the few weeks that followed, including the issue of an application for habeas corpus and, on 9 February 2015, the setting of new removal directions for 22 February. Those directions were met with another judicial review claim (JR/2046/2015) on 19 February 2015, in which a stay of the removal was initially granted on that day, but was then lifted on 20 February by Upper Tribunal Judge Jordan. The applicant was removed to Poland on 22 February.[15]The procedural story, however, does not end there. On 8 July 2016 the applicant’s appeal against the deportation order was allowed and the order was revoked on 3 August 2016.[16]With that review of the history of the disputes between the parties, I can turn to the judicial review claim and the arguments deployed before us.[17]The cornerstone of Mr Jacobs’ argument for the applicant is that, in the absence of statutory words clearer that those used in paragraph 22(4) of Schedule 2, the respondent could not lawfully withhold consent to the release of a detained person simply on the basis that she did not agree with the decision of the Tribunal judge who had decided to grant bail. He relies in this respect upon the decision of the Supreme Court in R (Evans) v Attorney General [2015] AC 1787, and in particular upon the judgment of Lord Neuberger of Abbotsbury (with whom Lord Kerr of Tonaghmore and Lord Reed agreed). The principle relied upon by Mr Jacobs, derived from this judgment, can conveniently be distilled from a short passage in paragraphs 51 and 52, as follows:
“51. … A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law. 52. First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.”
Mr Jacobs submits that the respondent’s decision to withhold consent in this case infringes this principle.[18]The Evans case involved a claim by a journalist, under the Freedom of Information Act 2000 (“FOIA 2000”), to obtain disclosure of correspondence that had passed between the Prince of Wales and various government departments on environmental issues. Disclosure had been resisted by the Departments concerned and had been refused by the Information Commissioner. On appeal the Upper Tribunal allowed the journalist’s appeal in respect of an identified class of the documents in issue. The Departments did not seek to appeal the matter further. However, invoking s.53 of FOIA 2000, the Attorney General issued a certificate purporting to render the decision of the Upper Tribunal of no effect. Section 53 provided that a decision notice or an enforcement notice served under FOIA 2000, “shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with section l(l)(a) or (b)].”[19]Mr Jacobs argues that, as in Evans (per Lord Neuberger), the respondent could not withhold her consent to the applicant’s release simply on the ground that, having considered the issue of bail with the benefit of the same facts and arguments as the judge, she had reached a different conclusion. Mr Jacobs referred us to paragraph 69 in Lord Neuberger’s judgment which he submitted was precisely parallel to the nature of the present case. Lord Neuberger said that there was a very strong case for saying that the Attorney General could not issue a certificate, on the basis of mere disagreement with the Tribunal decision for the following reasons:
“69. First, and most importantly, the two fundamental principles identified in para 52 above. Secondly, (i) the fact that the earlier conclusion was reached by a tribunal (a) whose decision could be appealed by the departments, (b) which had particular relevant expertise and experience, (c) which conducted a full hearing with witnesses who could be cross-examined, (d) which sat in public, and had full adversarial argument, and (e) whose members produced a closely reasoned decision, coupled with (ii) the fact that the later conclusion was reached by an individual who, while personally and ex officio deserving of the highest respect, (a) consulted people who had been involved on at least one side of the correspondence whose disclosure was sought, (b) received no argument on behalf of the person seeking disclosure, (c) received no fresh facts or evidence, and (d) simply took a different view from the tribunal.”
Where (on this basis) is the difference in principle, Mr Jacobs asks, between the Evans case and the proceedings before the judge on this bail application?[20]I find that the direct transposition of the passages from Lord Neuberger’s judgment, relied upon by Mr Jacobs, to the case before us is not as readily achieved as Mr Jacobs submits is possible, for at least three reasons.[21]First, and foremost, is the fact that we are dealing with a very different statute, differently worded from s. 53 of FOIA 2000 and dealing with very different circumstances. Secondly, the views of the Supreme Court judges in the Evans case, differed sharply on the point of “constitutional principle” for which Mr Jacobs would have us rely upon that decision in the matter before us. Thirdly, all but one of the members of the Supreme Court (Lord Wilson of Culworth being the one) took the view that it was impermissible for the executive to have a further opportunity to prevent disclosure of environmental information because of the effect of Parliament and Council Directive 2003/4/EC, given effect in domestic law by the Environmental Information Regulations 2004. Those provisions of EU law rendered final and binding, on the authority concerned, the decision of the independent and impartial body set up to decide such issues of disclosure. It was this final point that decided the case in Mr Evans’ favour, rather than the broad constitutional principle upon which Mr Jacobs relies.[22]Leaving aside for a moment the first of my reasons for distinguishing Evans and addressing the second and third points, it seems to me that the identification of the majority view of the Supreme Court in Evans, on the issue of principle relied upon by Mr Jacobs, is not entirely straightforward. Clear it is that two other members of the court (Lords Kerr and Reed) agreed with Lord Neuberger’s decision in full. However, Lord Mance (with whom Lady Hale of Richmond agreed) approached the matter rather differently.[23]It seems to me that Lord Mance approached the question of the validity of the certificate by focusing closely upon the adequacy of what the Attorney General asserted were the “reasonable grounds” for his opinion that there was no failure by the Departments to comply with the relevant provisions of FOIA 2000. The requirement of “reasonable grounds” presented a higher hurdle than a test of “mere rationality”: see paragraph 129 of the judgments. At paragraph 130 of the judgments, Lord Mance continued as follows:
“130. When the court scrutinises the grounds relied upon for a certificate, it must do so necessarily against the background of the relevant circumstances and in the light of the decision at which the certificate is aimed. Disagreement with findings about such circumstances or with rulings of law made by the tribunal in a fully reasoned decision is one thing. It would, in my view, require the clearest possible justification, which might I accept only be possible to show in the sort of unusual situation in which Lord Neuberger contemplates that a certificate may validly be given. This is particularly so, when the Upper Tribunal heard evidence, called and cross-examined in public, as well as submissions on both sides. In contrast, the Attorney General, with all due respect to his public role, did not. He consulted in private, took into account the views of Cabinet, former Ministers and the Information Commissioner and formed his own view without inter partes representations. But disagreement about the relative weight to be attributed to competing interests found by the tribunal is a different matter, and I would agree with Lord Wilson that the weighing of such interests is a matter which the statute contemplates and which a certificate could properly address, by properly explained and solid reasons. It seems that it was probably with this passage that Lord Neuberger found himself “in accord”: see paragraph 91.”
[24]After a very careful examination of the certificate, Lord Mance’s conclusion on this part of the case appears at paragraph 145 where he said this:
“145. It follows from all the above that the Attorney General’s certificate proceeded on the basis of findings which differed, radically, from those made by the Upper Tribunal, and in my view it did so without any real or adequate explanation. The Upper Tribunal’s findings and conclusions were very clearly and fully explained. I do not consider that it was open to the Attorney General to issue a certificate under section 53 on the basis of opposite or radically differing conclusions about the factual position and the constitutional conventions without, at the lowest, explaining why the tribunal was wrong to make the findings and proceed on the basis it did.”
[25]To add to the complication of the analysis of the Evans case on this point Lord Mance said (at paragraph 124) that he “subscribe[d] generally” to the views expressed by Lord Wilson in paragraphs 172 and 174-179 of the judgments.[26]In paragraphs 174 and 175, Lord Wilson considered the circumstances in which the Court of Appeal in that case thought that the issue of a s.53 certificate could be justified, namely, “a material change of circumstances since the decision of the tribunal or that the decision was demonstrably flawed in fact or in law”: see [2014] EWCA Civ 254, paragraph 38 per Lord Dyson MR. Lord Neuberger agreed with Lord Dyson in this respect: see paragraph 78 of the Supreme Court judgments. Lord Wilson (to whose view here, as already mentioned, Lord Mance “subscribe[d] generally”) said this about the two examples:
“177. Such are indeed valiant attempts to confer some substance upon the two examples given by the Court of Appeal. Do they succeed? They strike me, at least, as far-fetched and as thus serving only to illumine the deficiency of the Court of Appeal’s analysis of section 53.”
[27]Lord Wilson went on to comment, in paragraph 179, on the three decisions of the Court of Appeal relied upon for the proposition that it was not open to the Attorney General to give a certificate under s.53 in circumstances in which a court had made an evaluation of public interests with which he disagreed. The cases were R v Warwickshire County Council, exp. Powergen plc (1977) 96 LGR 617; R v Secretary of State for the Home Department, e p. Danaei [1998] INLR 124 and R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114. Lord Wilson’s comment, material for present purposes, was that in none of the cases did statute expressly confer a power of override on the public authority concerned.[28]Lord Hughes was, it seems, equally unconvinced of the suggested alternative circumstances in which a certificate could be validly issued (viz change of circumstances and demonstrable flaw). He said this at paragraph 156:
“156. In the end, the very fact that it is necessary to postulate so vestigial an extent for a generally expressed power if it is to be given any content at all is a potent demonstration that it does indeed mean what it says. The reality is that the section 53(2) provision for exceptional executive override was the Parliamentary price of moving from an advisory power for the Commissioner (and thus for the court on appeal) to an enforceable decision.”
He too pointed to the fact that in none of the three cases, to which I have already referred was there an explicit statutory power to disagree with the previous decision in issue.[29]In the circumstances, it seems to me that Mr Jacobs’ reliance on the judgment of Lord Neuberger as constituting the majority view of the Supreme Court, on the point now in issue, is too simple. It seems to me, with respect and gratitude, that the summary by the law reporters of the views of Baroness Hale, Lord Mance, Lord Wilson and Lord Hughes may more closely reflect the majority opinion on this issue. This is set out in the headnote to the Appeal Cases report at p.1788F as follows:
“Per Baroness Hale of Richmond DPSC, Lord Mance, Lord Wilson and Lord Hughes JJSC. Section 53 can and should be read as having an effect wide enough that the Attorney General can, under the express language of section 53(2), assert that he has reasonable grounds for considering that disclosure is not due under the 2000 Act. Disagreement as to the weight to be attached to competing public interests found by the tribunal is a matter contemplated by the statute and which a certificate could properly address by properly explained and solid reasons…”
[30]In my judgment, therefore, Mr Jacobs cannot rely on the sweeping constitutional principle, which he endeavours to extract from the judgment of Lord Neuberger, to the exclusion of the judgments of the other members of the Supreme Court. Therefore, I do not find the Evans case to be directly in point on the case before us. It does, however, provide some helpful guidance on the issues of principle and on the proper approach to this type of statutory power.[31]I return now to my first reason for questioning Mr Jacobs’ reliance on Lord Neuberger’s judgment for the broad proposition which he makes: i.e. the nature of this statute and its wording.[32]As Lord Hughes and Lord Wilson observed in Evans, part of the rule of law in this country is to give proper effect to Parliamentary intention. The task is to determine that intention from the words used and the context of the legislation as a whole. Lord Neuberger (at paragraph 57 in Evans) quoted Lord Reed in AXA General Insurance Ltd. v HM Advocate [2012] 1 AC 868 at paragraph 152 to this effect:
“The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.”
He referred also to a passage in Lord Steyn’s speech in the House of Lords in R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539 at 591 as follows:
“[u]nless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.”
To achieve the result the statutory words must be “crystal clear” and must not be “general or ambiguous”.[33]Mr Eadie QC for the respondent submits that the words in this statute are “crystal clear”, but he accepts, in my view clearly correctly, that a decision by the respondent to withhold consent to the release of a detainee, after a bail decision in the detainee’s favour by the Tribunal, is susceptible to challenge on traditional public law grounds. There are, however, potential nuances in the possible tests of rationality that might be applicable upon such a challenge to a ministerial decision of this character to which I will return.[34]Mr Jacobs was inclined to adopt as the ambit of the respondent’s proper grounds for withholding consent as being where there had been a material change of circumstances or a demonstrable flaw in the reasoning of the judge in granting bail: c.f. the view of Lord Neuberger in Evans, and of Lord Dyson MR in this court in that case, to which I have already referred.[35]In my judgment, the power to withhold consent is not so constrained. The words are entirely general and are quite clear enough to indicate a wider power. The limitations sought to be imported by Mr Jacobs are simply not there in the words used in this statute. Equally, there is not even the limitation on the power, that it should be exercised on identified “reasonable grounds” as in s.53 of FOIA 2000.[36]It must be borne in mind that this power conferred upon the respondent has a very limited ambit. It applies where there is a decision to grant bail inside the short period of 14 days between that decision and the date upon which directions require the detainee to be removed from the UK. As in this case, the premise is that the detainee is otherwise lawfully detained. Here, while a challenge to the lawfulness of the certification of the removal was envisaged at the time of the bail application, it had not been issued and it was not being said that the applicant was being unlawfully detained while the deportation order subsisted. If there is a challenge to the lawfulness of the antecedent detention, remedies lie in the High Court, which also has the power to grant bail by way of interim relief.[37]The period shortly before compulsory removal of a person from the country could well be seen as a time when risk of absconding should be minimised. It is perhaps not surprising that Parliament should confer such a power upon the respondent. It is a limited power available in a very short period. It is not the sort of power applicable in very diffuse procedural circumstances of the type in which the power under s.53 of FOIA might come into play.[38]It is also pointed out that a similar provision, conferring upon the respondent power to withhold consent to release on bail, arises under paragraph 30 of Schedule 2 to the 1971 Act, in cases where a person is detained pending an appeal and seeks bail. In the original version of that provision, amended at the same time as the introduction of paragraph 22(4) by the Immigration Act 2014, the power to withhold consent extended for the full period of the pending appeal, where removal directions had been given or where the power to give them was exercisable. It was not confined as now to the short period immediately prior to removal.[39]Mr Eadie submits that the amendment to that power, giving it more limited application, and the introduction of paragraph 22(4) into Schedule 2 at the very same time, indicate that Parliament carefully considered the timeframe within which the power could be exercised and used the quite general words that one finds in both paragraphs. (Mr Jacobs, at the hearing, argued that paragraph 30 had no continuing effect, having regard to the decision of Woolf J in R v Immigration Appeal Tribunal, ex p. Alghali [1984] Imm. A.R. 106. I address this point in Annex A to this judgment, as it does not bear directly on the central issue before us.)[40]As already mentioned, Mr Eadie recognises that an exercise of the power to withhold consent remains subject to a public law challenge, which (of itself) provides a constraint upon the exercise of the power and requires us to consider, on the facts of this case, whether the decision of the respondent was a lawful one. In my judgment, the existence of the remedy in judicial review fortifies the conclusion that the power to withhold consent is not to be limited in the manner for which Mr Jacobs contends.[41]Of course, Parliament has enacted a two-part process: the Act envisages the possibility of bail being sought by a detainee and, if granted, a consideration by the respondent whether or not to consent to the release of the detainee. (It was not put to us that the statute might permit the respondent to state her refusal of consent to any release, even prior to the hearing of an application.) Mr Eadie’s submissions recognise that, in a case such as the present, the respondent has to give due regard to the decision of the tribunal judge and to consider the judge’s reasons for granting bail.[42]Mr Eadie suggested to us a number of tests which might apply if the decision to withhold consent to release is challenged in judicial review proceedings. His favoured two possibilities were: a) that Parliament intended to allow the respondent to consent or not on the basis of a rational judgment of “the right thing to do” in the circumstances of the case, having regard to the judge’s bail decision; or b) the power was intended to be exercised only on the basis of a rational disagreement with the judge’s conclusions.[43]For my part, I think that alternative b) would properly reflect the consequences of the scheme enacted by Parliament. Where there has been a judicial decision, it obviously makes sense that Parliament should have intended that the decision should be given full consideration when the respondent comes to consider whether she will consent to the release of the detainee. I accept Mr Eadie’s submission that any disagreement with the judge’s decision must be on a rational basis. The structure of the statutory provisions is to create a power to withhold consent to the implementation by release of a grant of bail made by someone else. That does not suggest that the respondent is to be the primary decision maker, rather that the statutory power should be used as a final check upon the decision to release in circumstances in which common sense might dictate that the temptation to abscond might be at a high level.[44]I approach the challenge to the withholding of consent in this case, therefore, on the basis of Mr Eadie’s alternative b). Did the respondent withhold consent to release in this case on a rational basis, having proper regard to the judge’s decision to the contrary?[45]The judge’s decision was clearly reached after very careful consideration of the case and his reasons were fully and clearly expressed. An appeal from his decision would have been difficult to sustain, but that is not the test. As I have said, it seems to me that this power provides to the respondent a useful check to protect against undesirable consequences of release of an immigration detainee in very confined circumstances.[46]In my judgment, the respondent’s decision was reached on a rational basis for both of the reasons expressed in the decision letter. The respondent could take a rationally different view from the judge on the risk of the applicant absconding for the reasons that were expressed. The respondent was entitled to have regard to the previous offence of failing to surrender and the applicant’s period of incarceration limiting (or indeed preventing) his ability to abscond in the interim. She was also entitled to note the absence of any subsisting challenge to the certification of the applicant’s removal, made over a month before. Equally, while the judge had been correct to observe that the respondent had not produced the written evidence in support of the statement that the applicant had been assessed as presenting a medium risk of serious harm to others (including through the use of weapons and other violence), that evidence was in existence and in the hands of the respondent. The presentation of the respondent’s case before the judge may, therefore, have been less than ideal in this respect, but it is difficult to disagree with the respondent’s view that the OASys assessment was “highly relevant”, as the respondent said, to the risk of reoffending presented by the applicant.[47]I conclude, therefore, that there is no ground upon which the respondent’s initial decision to withhold consent can be said to have been unlawful and in that respect I would refuse the application for judicial review.[48]However, matters do not end there. As already mentioned, the removal directions which were extant at the time of the judge’s decision and at the time of the respondent’s withholding of consent to the applicant’s release were cancelled on 23 January 2015. Mr Jacobs argues that once the removal directions had been cancelled there was no basis upon which the respondent was entitled to withhold consent to the applicant’s release. Accordingly, the judge’s bail decision stood and the applicant should have been released in accordance with it.[49]Mr Eadie argues that new directions were set on the 9 February and no further bail application was made. Thus, this aspect of the claim is academic. Even if that is not academic, he says, once the consent to release had been withheld the bail decision of the judge fell away and had no further effect. It is argued that the refusal of consent is a composite part of the bail process on the particular day and once consent has been refused then a new bail application is required before the matter can be revisited. In effect, he argues, once consent is refused and the detainee is not released, the bail application has failed.[50]For my part, I found these submissions rather difficult to square with Mr Eadie’s acceptance before us that the respondent could (hypothetically) refuse to consent to release until she had had opportunity to consider the judge’s reasons for granting bail and might then withdraw her objection and consent to the release.[51]It seems to me that the structure of paragraph 22 of Schedule 2 militates against Mr Eadie’s submission. The paragraph predicates a decision to release on bail, with a power conferred upon the respondent to prevent the implementation of the decision by withholding consent. The existence of the respondent’s power is conditional. If the conditions are not satisfied there is no power to withhold consent so as to prevent release. There is nothing in the paragraph to suggest that once consent is withheld the prior decision to release is nullified.[52]In my view, continued withholding of consent preventing the applicant’s release on 23 January, rendered the detention unlawful. But the period of unlawful detention was a limited one. New directions were set on 9 February and thereupon the applicant could once more have been detained lawfully. Thus, any claim to relief would be limited to that 17 day period.[53]In the circumstances, I consider that this application for judicial review should be granted to the very limited extent of declaring that the applicant was unlawfully detained from 23 January to 9 February 2015 and that damages should be assessed for the unlawful detention in that 17 day period. Annex A 1. As indicated in paragraph 39 above, in the course of his helpful arguments upon the proper construction of paragraph 22 of Schedule 2 to the 1971 Act, Mr Jacobs argued that paragraph 30 of that same schedule, giving to the Secretary of State a power to prevent release on bail, pending appeal, of an immigration detainee by withholding her consent to release, where removal is to take effect within 14 days, was ineffective. 2. Paragraph 29 of the Schedule confers a power to release a detainee on bail where he has an appeal pending under part 5 of the Nationality, Immigration and Asylum Act 2002. Paragraph 30 then provides (in terms similar to paragraph 22(4) as follows:
“An appellant shall not be released under paragraph 29 above without the consent of the Secretary of State if- (a) directions for the removal of the appellant from the United Kingdom are for the time being in force, and (b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.” (a) directions for the removal of the appellant from the United Kingdom are for the time being in force, and (b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.” 3. As also mentioned in my judgment, paragraph 30 as originally enacted applied whenever removal directions were in force or whenever the power to give such directions was exercisable, without limit of time. That limit in the present version of the paragraph was introduced by the Immigration Act 2014 at the same time as a similar limited power was enacted in paragraph 22(4). 4. As originally enacted, Schedule 2 of the Act also included the following provision in paragraph 28: “Where a person in the United Kingdom appeals under section 13(1) of this Act on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom shall cease to have effect, except in so far as they have already been carried out, and no directions shall be given so long as the appeal is pending.” 5. In R v Immigration Appeal Tribunal, ex p. Alghali [1984] Imm. A.R. 106, the point arose (as formulated by Woolf J (as he then was) who decided the case) as to whether or not, where there had been an appeal and an adjudicator had dismissed the appeal, but had either given leave to appeal or the appellant had given notice of appeal against the determination of the adjudicator, the adjudicator’s power to grant bail was restricted by the absence of the Secretary of State’s consent to the granting of bail. 6. As already indicated, I do not entirely agree with that formulation of the question since, in my view, the power in the Tribunal (then the adjudicator) to grant bail arises under paragraph 22 or 29, as the case may be, and is unrestricted. However, the implementation of any bail decision may be prevented by the withholding by the Secretary of State of her consent to release. However, that is not the subject of the present issue nor was it the issue arising in the Alghali case, which concerns/concerned the effect of paragraph 28 of the original 1971 Act. 7. In Alghali, it was argued for the appellant that the effect of paragraph 28 (as then in force) was to prevent the restriction on the release on bail applying once an appeal was pending. In terms, the paragraph provided that where there was a relevant appeal “any directions…for…removal from the United Kingdom shall cease to have effect…”, except so far as already carried out. If they were of no effect the directions could not be regarded as “in force” for the purposes of paragraph 30. 8. After taking time for reflection on this point, Mr Simon Brown (as he then was) for the Secretary of State informed the court that the Home Office accepted the appellant’s argument. 9. Thus, paragraph 30, which only applied to releases on bail pending appeal, seems to have ceased to have any practical effect as a result of the Alghali decision. The bail powers, such as they were, became untrammelled by any prospective withholding of consent to release by the Secretary of State. 10. Mr Jacobs went from there straight to s.78 of the Nationality, Asylum and Immigration Act 2002 which provides (in its material parts) as follows: “78. No removal while appeal pending (1) While a person’s appeal under section 82(1) is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. … (3) Nothing in this section shall prevent any of the following while an appeal is pending— (a) the giving of a direction for the appellant’s removal from the United Kingdom, …” (1) While a person’s appeal under section 82(1) is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. … (3) Nothing in this section shall prevent any of the following while an appeal is pending— (a) the giving of a direction for the appellant’s removal from the United Kingdom, …”
Mr Jacobs submitted that this section was to the same effect as the old paragraph 28 of Schedule 2. 11. As Mr Eadie pointed out, this section only provides for a prevention of removal from the country pending appeal. Unlike the old paragraph 28, it has nothing to say about the effect of an appeal on any removal directions already given for other purposes and indeed, in subsection (3)(a) it is stated that nothing in the section prevents the giving of a direction for removal. 12. The important point is to find out what has become of paragraph 28 which was the paragraph crucial to the decision in Alghali. The short answer is that it was repealed by the Immigration and Asylum Act 1999, as indicated by the notes to the Westlaw print of the statute which the parties have helpfully provided to us. 13. In the circumstances, it appears that the power to withhold consent to a release on bail, pending appeal, as presently appearing in paragraph 30, applies with full force, without the nullifying effect of the old paragraph 28 (or any similar provision) such as gave rise to the Secretary of State’s difficulties in the Alghali case.

Lord Justice Underhill:

[54]When I first considered this case I felt a strong sympathy for the Judge’s reaction as recorded at para. 3 of McCombe LJ’s judgment. However I think it is inescapable, for the reasons given by my Lord, that Parliament intended that in the very specific circumstances to which the statute applies an official in the Home Office should have the power to prevent the implementation of the decision of the First-tier Tribunal. Although I agree that that power is not constrained in the way contended for by Mr Jacobs and that the correct approach must be Mr Eadie’s “alternative (b)”, as recorded at para. 42, I would emphasise that on that approach the discretion in question is a discretion to disagree with the decision of the Tribunal: the Secretary of State is not approaching the question of bail from scratch. It follows that in exercising that discretion she must give full weight to the advantage enjoyed by the Tribunal in having had a hearing at which the evidence is presented and oral submissions are made. That is indeed reflected in the Home Office Guidance on Bail Applications to which we were referred, which says (at p. 50 of version 7) that “significant weight” should be given to the decision of the judge who has granted bail and that the power to withhold consent to release “should only be exercised in exceptional circumstances”.[55]As to whether, taking that approach, the Secretary of States’ decision in this case was lawful, the Judge gave specific and well-structured reasons and had the advantage of hearing the Appellant’s mother give evidence; and I was, again, at first doubtful whether the reasons given for disagreeing with his assessment were indeed reasonable. But I am in the end persuaded by what McCombe LJ says at para. 46 of his judgment. In particular, I think the Secretary of State was entitled to be concerned by the Judge’s apparent discounting of the OASYS assessment only on the basis that the actual document had not been produced.[56]I would accordingly agree with McCombe LJ’s conclusion on this issue; and I also agree with him on the other issues with which he deals.[57]I had not before had experience of the exact process by which decisions under paragraph 22 (4) are taken. The system seems in this case to have worked well because the Judge had, and took, the time to retire and to produce a full manuscript note of his reasons, on which the Presenting Officer was then able to take instructions. Likewise the official to whom she reported was apparently immediately available and evidently had sufficient time to consider and formulate headline reasons for the Presenting Officer, which she then reported back to the Tribunal. But there was some discussion before us about whether a “same-day” conclusion of that kind would always be possible, at least without putting either the Judge or the official under undue time pressure. It seems to me important that the decision-taker has access to an authoritative record of the Judge’s reasons and sufficient time to consider them properly. Although what happened in the present case is certainly best practice and should be followed if possible, I can see no reason in principle why the Secretary of State is obliged in every case to make a definitive decision before the end of the day: I think she should in an appropriate case be entitled to withhold a decision for a (very) short period in order to enable a considered decision to be taken; and, as McCombe LJ notes at para. 50 of his judgment, Mr Eadie accepted that this could be done.

Lord Justice Flaux:

[58]I agree with both judgments of my Lords.

Cited in 3 later judgments