The proper test to be applied where there was a judicial review challenge to the secretary of state’s decision to withhold consent to the release on bail of a detainee subject to deportation (following a bail decision in the detainee’s favour by a tribunal) was whether that power had been exercised on the basis of a rational disagreement with the judge’s conclusions concerning bail
Roszkowski v Secretary of State for the Home Department  EWCA Civ 1893 Court of Appeal, Civil Division, McCombe, Underhill and Flaux LJJ – 23 November 2017
Immigration – Detention – Judicial review challenge to Secretary of State’s decision withholding consent to bail pending deportation of foreign criminal
The proceedings concerned the application of the Immigration Act 1971 (IA 1971), section 4 and paragraph 22 of schedule 2, under which a person detained pending deportation could apply to a chief immigration officer, or to the First-tier Tribunal for release on bail.
The applicant (L), a Polish national living in the UK, was sentenced to a total of four years’ imprisonment for robbery and wounding with intent to cause grievous bodily harm. In 2014, a deportation order was made against him and the respondent secretary of state authorised his detention, pending removal. A judge granted L’s application for bail, having found that there were no substantial grounds for believing that he was likely to reoffend. The secretary of state refused to consent to L’s release on bail, such consent being required under the IA 1971, paragraph 22 of schedule 2, having considered that he presented a medium risk of serious harm to others, that he was a repeat offender with a previous failure to surrender to custody and that he presented a clear risk of reoffending.
In January 2015, L applied for judicial review to challenge the secretary of state’s decision to withhold consent to bail.
Application allowed in part.
Issues and decisions
(1) Whether the secretary of state’s initial decision to withhold consent had been unlawful. On behalf of L it was submitted that the secretary of state could not withhold her consent to bail simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the judge, she had reached a different conclusion.
The court considered the fact that, while a challenge to the lawfulness of the certification of the removal had been envisaged at the time of the bail application, it had not been issued.
The test to be applied if the secretary of state’s decision (to withhold consent to release on bail following a bail decision in the detainee’s favour by a tribunal) was challenged in judicial review proceedings was whether the power had been exercised on the basis of a rational disagreement with the judge’s conclusions.
The power to withhold consent was not constrained to where there had been a material change of circumstances or a demonstrable flaw in the judge’s reasoning in granting bail. The words were entirely general and were quite clear enough to indicate a wider power. An exercise of the power to withhold consent remained subject to a public law challenge, which (of itself) provided a constraint upon the exercise of the power and required the court to consider, on the facts of the case, whether the secretary of state’s decision of had been a lawful one (see -, , ,  of the judgment).
The challenge to the withholding of consent in the present case would be approached on the basis of whether the secretary of state had withheld consent to release on a rational basis, having had proper regard to the judge’s decision to the contrary.
The judge’s decision had been clearly reached after very careful consideration of the case, and his reasons had been fully and clearly expressed.
On the facts, the secretary of state’s decision had been reached on a rational basis. She could have taken a rationally different view from the judge on the risk of L absconding for the reasons that had been expressed. The secretary of state had been entitled to have regard to the previous offence of failing to surrender and L’s period of incarceration limiting (or preventing) his ability to abscond in the interim. Further, she had also been entitled to note the absence of any subsisting challenge to the certification of L’s removal, made over a month before. Equally, while the judge had been correct to observe that the secretary of state had not produced the written evidence in support of the statement that L had been assessed as presenting a medium risk of serious harm to others (including through the use of weapons and other violence), that evidence had been in existence and in the hands of the secretary of state (see - of the judgment).
Accordingly, there was no ground upon which the secretary of state’s initial decision to withhold consent could be said to have been unlawful and the application for judicial review on that basis would be dismissed (see  of the judgment).
R (on the application of Evans) v A-G (Campaign for Freedom of Information Intervening)  4 All ER 395 distinguished; R v Secretary of State for the Home Department, ex p Pierson  3 All ER 577 considered; AXA General Insurance Ltd v Lord Advocate (Scotland)  All ER (D) 101 (Oct) considered.
(2) Whether, as L contended, once the removal directions had been cancelled on 23 January 2015, there had been no basis upon which the secretary of state had been entitled to withhold consent to his release and, accordingly, the judge’s bail decision had stood and L should have been released in accordance with it. The court considered the fact that, after the removal directions had been cancelled L had remained in detention for a certain period prior to his removal to Poland on 22 February, and that, in July 2016, L’s appeal against the deportation order had been allowed and, in August, the deportation order had been revoked.
IA 1971, paragraph 22 of schedule 2, predicated a decision to release on bail with a power conferred upon the secretary of state to prevent the implementation of the decision by withholding consent. The existence of that power was conditional. If the conditions were not satisfied, there was no power to withhold consent so as to prevent release. There was nothing in the paragraph to suggest that, once consent was withheld, the prior decision to release was nullified (see  of the judgment).
The continued withholding of consent preventing L’s release on 23 January 2015 had rendered the detention unlawful. However, the period of unlawful detention was a limited one. New directions had been set on 9 February and, thereupon, L could once more have been detained lawfully. It followed that, any claim to relief would be limited to that 17-day period.
Accordingly, the application for judicial review would be granted to the very limited extent of declaring that L had been unlawfully detained from 23 January to 9 February. Damages would be assessed for the unlawful detention in that 17-day period (see ,  of the judgment).
Christopher Jacobs and Katherine Olley (instructed by Ahmed Rahman Carr LLP) for L.
James Eadie QC and Carine Patry (instructed by the Government Legal Department) for the Secretary of State.
Carla Dougan-Bacchus, barrister.