Home Office empowered to disregard Judge’s Decision to grant detainees bail

In the recent case of Lukasz Roszkowski v Secretary of State for the Home Department [2017] EWCA Civ 1893, a Polish national who had been detained by immigration authorities pending his deportation from the United Kingdom had his bail hearing heard by the first tier tribunal and the Immigration Judge  granted bail. The Home Office nevertheless refused consent to the individual being granted bail.

The Judge at Paragraph 3 of the judgement stated:

A civil servant without hearing the evidence that I have heard, has decided to disregard my views.

The Immigration Act 2014, Paragraph 22 (4) empowers the Home Office to consent to bail. However this power only applies where removal directions are in force and the individual is to be removed from the United Kingdom within 14 days.

When the Court of Appeal examined the power which the Home Office have, it was concluded that the intentions of the law makers were that “an official in the Home Office should have the power to prevent the implementation of the decision of the First-tier Tribunal”

In the Supreme Court case of Evans v Attorney General [2015] AC 1787, Lord Neuberger states:

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.

However, despite the above, it is the role of the courts to give effect to Parliamentary intention.

The court declared that the Home Office use of power in this case was unlawful as Mr Roszkowski’s removal directions had be deferred. As a result of this, the powers granted to the Home office under Paragraph 22(4) were not applicable as Mr Roszkowski no longer had removal directions pending. The Court also rejected the Home Office argument that once consent had been refused, the bail application had failed and a further bail application was necessary. However it remains to be seen how the Home Office will continue use its powers in future.

If you or your friends or relatives have experienced any difficulties with UK Immigration and Visas, contact our specialist detention lawyers on 020 3503 0880

Raman Kumar – Senior Caseworker

If you, your friends or relatives are experiencing any difficulties with immigration, please don’t hesitate to contact us now for more information and advice on 0203 503 0880