Supreme Court reaffirms, in the bail context, constitutional principle that judicial orders must be obeyed unless and until set aside

The Supreme Court gave judgment this morning in a case of ‘constitutional importance’ concerning the Home Office’s non-compliance with a tribunal bail order.

Bail for Immigration Detainees intervened through oral and written submissions.

Anthony Vaughan represented the Appellant Mr Majera and was led by Amanda Weston QC of Garden Court Chambers, with Gordon Lee also of Garden Court, and was instructed by Daniel Furner of Birnberg Peirce.

Laura Dubinsky represented the Intervener, Bail for Immigration Detainees and was led by Raza Husain QC of Matrix Chambers, with Shane Sibbel of Blackstone Chambers, and instructed by Herbert Smith Freehills LLP.

The position of the Home Secretary (accepted in the Court of Appeal) had been that because, in her opinion, the tribunal’s bail order in Mr.Majera’s favour was legally defective, she was not obliged to comply with it.  Allowing Mr Majera’s appeal, the President of the Supreme Court, Lord Reed reaffirmed the importance of compliance with the rule of law and the principle that judicial orders must be obeyed unless and until set aside by a court.

The judgment (neutral citation [2021] UKSC 46) can be accessed here.

More detail concerning the judgment is supplied below.

Mr Majera had been granted bail by the First Tier Tribunal in terms which, the parties agreed, failed to state the primary bail condition that Mr Majera must report to an immigration officer. The Secretary of State purported to release Mr Majera under a different, and more stringent, set of conditions on the basis that the Secretary of State was entitled to treat the bail order as invalid and of no effect.  The Secretary of State’s ‘notice of restrictions’ included imposition of a curfew, even though the FTT had not imposed such a condition. Mr Majera challenged the notice of restrictions by judicial review and the Upper Tribunal upheld his claim.

On appeal to the Court of Appeal the Secretary of State argued that she never had to obey the FTT’s order,  because the Tribunal lacked jurisdiction to make so defective an order. The Court of Appeal upheld the Secretary of State’s appeal and declared that the bail order was void from the outset and a nullity; and therefore she was entitled to ignore it even though she had failed to make any application to vary or set it aside (SM (Rwanda) v Home Secretary [2018] EWCA Civ 2770).

Mr Majera appealed to the Supreme Court on the basis that the Court had applied authorities which had no bearing on the question of obedience to court orders; and the Court of Appeal had wrongly categorised the FTT’s decision as administrative rather than judicial.  

Allowing the appeal, the Supreme Court reaffirmed the principle that court orders, even those which are considered by a party to be defective, are to be obeyed unless or until varied or set aside by a court of competent jurisdiction. The Secretary of State was bound to obey the order in circumstances where she had failed to apply to vary it or challenge it. It was therefore not open to the Court of Appeal to declare the order invalid. Any court on a judicial review considering whether a remedy should be granted as a result of the defect in the order would be bound to consider a host of factors including whether there was delay in the challenge and whether a discretionary remedy was appropriate in all the circumstances. The Court of Appeal’s approach had omitted consideration of those factors.

The Court also made a number of observations about the appropriate procedure where a party relies on the invalidity of a measure to justify their failure to comply with it.