Small, R (on the application of) v Secretary of State for the Home Department

The power to re-detain a person released on immigration bail must be exercised reasonably and justified by sufficient fresh material. The Secretary of State cannot use re-detention merely to circumvent an immigration judge’s decision to grant bail.

Material initially supporting a belief that a person will abscond may cease to justify detention when the person subsequently complies with the first reporting requirement. Re-detention may nevertheless be lawful where post-release conduct, considered with the earlier evidence, provides reasonable grounds for believing that the person is likely to reoffend.

The claimant, a Jamaican national subject to a deportation order and pending appeal, was released from immigration detention on bail by an immigration judge. His conditions included reporting to the authorities and residing at his aunt’s address.

The Secretary of State decided to re-detain him after an alleged early-morning incident involving his former partner, his failure to engage with the police, and concerns about compliance with the bail conditions. The claimant sought judicial review, alleging that the decision was an abuse of the re-detention power and was Wednesbury unreasonable. The central issue was whether the evidence provided reasonable grounds under paragraph 33 of Schedule 2 to the Immigration Act 1971, including reasonable grounds for believing that he was likely to reoffend.

1. Application refused. The decision to re-detain was lawful because it was supported by fresh evidence arising after the claimant’s release on bail.
2. Paragraph 33 of Schedule 2 to the Immigration Act 1971 permits re-arrest where there are reasonable grounds for believing that a released person is likely to breach a bail condition or where a surety seeks release. The power must be exercised reasonably and justified by evidence. It cannot be used simply to circumvent an immigration judge’s grant of bail.
3. The original grounds based on a predicted failure to report became insufficient once the claimant attended and complied with his first reporting appointment. His attendance removed the earlier inference that he was likely to abscond. The evidence that he was not residing at the bail address was also too weak and internally inconsistent with the alleged absconding case.
4. The risk-of-reoffending ground was different. The alleged early-morning incident at the former partner’s home, independent information from a neighbour, the timing of the incident, the claimant’s failure to engage with the police, and his failure to explain why he missed an agreed appointment constituted fresh material. Considered in the round, that evidence provided reasonable grounds for believing that he was likely to commit further offences.
5. The claim was therefore dismissed. The Secretary of State was awarded 50 per cent of her costs, subject to the usual legal aid order, and the claimant’s legal aid costs were to be assessed.

This was a first-instance judicial review. The judgment describes earlier decisions granting and maintaining immigration bail, but no appeal from a lower court decision is stated.