Minteh, R (on the Application of)

At the leave stage of a judicial-review claim concerning immigration bail, the statutory scheme gives a Special Adjudicator discretion to grant or refuse bail. A recognisance by the applicant is required, but sureties are optional unless required by the adjudicator. The Immigration Act 1971 contains no presumption in favour of bail. Nevertheless, published Home Office policy concerning detention and temporary admission may be relevant. It was arguable that the adjudicator should have considered that policy and its relevant factors. An imminent appeal hearing did not defeat leave where the timing information was mistaken; expedition could address any practical concern.

The applicant, a Gambian national who had claimed asylum, was detained pending an appeal against refusal of asylum. A Special Adjudicator accepted that there was no evidence suggesting that he was likely to abscond, but refused bail because accommodation evidence was outdated and no surety was offered. She also relied on a practice of refusing bail without sureties.

Mr Justice Ognall refused leave on 12 February 1996, considering that the expected imminent appeal hearing removed any practical purpose and refusing an amendment concerning the legality of earlier decisions. On renewal, the Court of Appeal was informed that the hearing-date information was erroneous or confused and that the appeal remained pending. The central issue was whether the judicial-review challenge was properly arguable, including whether published policy should have been considered and whether the absence of sureties had been treated lawfully.

Disposition. The renewed application for leave to apply for judicial review was granted. The order was confined to leave to apply, and expedition of the substantive hearing was suggested. Legal aid taxation was granted.

1. Mr Justice May held that the substantive challenge was properly arguable. The anticipated appeal hearing did not justify refusing leave, particularly because the information about its date was erroneous or confused. Nor was the court deterred by any need to amend Form 86A.
2. The court read paragraphs 29 and 30(2) of Schedule 2 to the Immigration Act 1971 as conferring a discretion to grant or refuse bail to an appellant with a pending appeal under section 13(1). The applicant had to enter a recognisance conditioned on attendance at the appeal. Conditions could be imposed, and the recognisance could be with or without sureties. Sureties were therefore not automatically required.
3. Lord Justice Staughton cautioned that the Special Adjudicator had accepted only that there was no evidence suggesting a likelihood of absconding, rather than making a positive finding that the applicant would not abscond. He found no statutory presumption in favour of bail. The absence of such a presumption did not, however, resolve whether the discretion had been exercised lawfully.
4. Lord Justice Staughton considered that the Secretary of State’s published policy, derived from the identified Home Office materials, indicated that detention should be used as a last resort. It did not appear that the Special Adjudicator had specifically directed herself to that policy or its relevant factors. It was therefore properly arguable that those matters should have been considered. The court did not finally determine the merits of that ground.

• High Court — Mr Justice Ognall refused leave to apply for judicial review on 12 February 1996 and refused an amendment concerning the legality of earlier decisions.
• Court of Appeal (Civil Division) — On renewal, granted leave to apply for judicial review and suggested expedition of the substantive hearing.