England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

MR JUSTICE MAY: This is a renewed application for leave to move for judicial review and bail on behalf of Lamin Minteh. Mr Justice Ognall refused leave on 12th February 1996 after an oral hearing.

Mr Minteh is a national of Gambia, born on 11th June 1970. He arrived in the United Kingdom, on 23rd October 1995 with a valid Gambian passport and claimed asylum. He did not apparently seek to enter the country on any other basis. His case is that he was granted temporary admission, although that is disputed, but that after interview by Immigration Officers his temporary admission was revoked. In his form of application he seeks leave to move for judicial review against that decision, but in my view this point contains little materiality now.

Having instructed solicitors the applicant made a bail application in conjunction with three other Gambian asylum seekers whose circumstances were similar to his. These applications came before the Special Adjudicator on 17th November 1995. A representative of the Gambia Welfare Association was at that hearing to say that the association had obtained and would pay for accommodation for the applicant. A letter from a housing association called V&A Housing Financial Services confirmed this. On this occasion the Special Adjudicator concluded that he had no jurisdiction to hear the bail applications.

The applicant was informed on 1st December 1995 that the Secretary of State had refused his application for asylum. He proceeded to initiate an appeal against that refusal to a Special Adjudicator. Meanwhile he again applied for bail. The application came before a different Special Adjudicator on 14th December 1995. It was opposed on behalf of the Secretary of State on the grounds that the applicant had no friends or family in the United Kingdom to act as sponsor; that he had no accommodation in the United Kingdom; that he had been refused asylum and that the hearing date for this appeal was expected shortly; and, importantly, that no sureties had been offered for the applicant.

The Special Adjudicator accepted that there was no evidence to suggest that the applicant might be likely to abscond if he were granted bail, but she refused bail because the offer of accommodation was out of date and the representative of the Gambian Welfare Association was not present. Further bail applications were made before the same Special Adjudicator on 19th December 1995. This time the Gambian Welfare Association Representative did attend. He was asked if he could stand as surety. He said that the association had a policy not to do so because of their limited resources. He was, however, prepared to take responsibility for the applicant.

The Special Adjudicator again accepted that there was no evidence to suggest that the applicant was likely to abscond but she said it was her practice not to grant bail if there were no sureties. She was invited to depart from this practice where it was accepted that the applicant was not likely to abscond, but she declined to do so and refused bail, Judicial review is sought of this decision.

By paragraph 29 of Schedule 2 of the Immigration Act 1971 a Special Adjudicator has power to release on bail a person who has an appeal pending under Section 13(1) of the 1971 Act upon his entering into a recognisance conditioned for his appearance at his appeal. Conditions may be imposed. The recognisance may be with or without sureties. In paragraph 30(2), it is provided that the Special Adjudicator shall not be obliged to release an appellant unless the appellant enters into a recognisance, with sufficient and satisfactory sureties, if required, and an adjudicator shall not be obliged to grant bail in five circumstances, none of which applies positively in this case. There is thus a discretion to grant or refuse bail. A recognisance by the appellant is a prerequisite. Sureties may or may not be required.

The applicant submits that on the facts of this case the Special Adjudicator was obliged to grant bail and that the refusal of bail was erroneous in law because the absence of a surety was irrelevant when the conclusion was that there was no evidence to suggest that the applicant was likely to abscond. It is suggested that the Special Adjudicator was wrong because she fettered her discretion by adopting her stated policy of not granting bail when there were no sureties and because the decision to refuse bail was, it is suggested, in the circumstances irrational or perverse. Reliance is placed on published Home Office Policy to the effect that temporary admission should be granted whenever possible and that detention in cases such as this should be authorised only where there is no alternative and when there are grounds for believing a person would not comply with the conditions of temporary admission. It is submitted that the policy embodies a presumption in favour of bail.

The hearing before Mr Justice Ognall was on 12th February 1996. He accepted that there was an arguable case against the decisions of the Secretary of State and the Special Adjudicator, but he refused leave because he was told that the applicant's appeal was due to be heard on 22nd February 1996. He concluded presumably that there was no purpose to be served by granting leave to move, presumably because the Special Adjudicator's immediate jurisdiction to grant bail would have lapsed by the time the substantive hearing of the judicial review application took place. Mr Justice Ognall also decided it was too late to seek leave to amend the Form 86A to seek a declaration as to the historic legality of decisions whose effect was about to be spent and he refused leave to amend. It now appears that that information, that is to say that the appeal was to be heard on 22nd February 1996 was erroneous or that there was a muddle. The applicant's appeal did not in fact take place on that day and has not yet taken place. Apparently it is set for hearing on 29th March 1996 although as of this morning the applicant's representative knew nothing of this. We are told the date was fixed yesterday.

I agree with Mr Justice Ognall that the substantive the case is properly arguable and I, for my part, would grant leave. I would not be deterred by doing so by any need, if there is one, to amend Form 86A nor by the comparatively imminent hearing date of the applicant's appeal. I also have in mind that we have been referred to a decision of Mr Justice Owen, in the Crown Office on 16th January 1996 in an application for leave for judical review in cases called Brezinski and Glowacka, where Mr Justice Owen granted leave on the basis that it was arguable that a Special Adjudicator, when considering the bail application, should have regard to the Secretary of State's published policy. Accordingly I, for my part, would grant leave and in the circumstances of this case I would suggest that expedition of that hearing be directed.

LORD JUSTICE STAUGHTON: Mr Gill told us three times that the Special Adjudicator had accepted that the immigrant in this case was not likely to abscond. That is not how I read the decision. It seems to me that she accepted that there was no evidence that he was likely to abscond. The question remains there is a presumption in favour of bail. I can find no suggestion of one in this statute, the Immigration Act of 1971. I have been concerned, to some extent, by the fact that the Special Adjudicator, when the matter first came before her, set out the requirements which she regarded as necessary to be fulfilled were indicated on two occasions when those requirements had been fulfilled, set out some more points apparently not wholly accurately that is what troubles me, but the main point that I see is the so-called policy of the Secretary of State. This is said to have derived from, in the first place, a letter of DJ McDonagh, Deputy Director, Enforcement Immigration Service Headquarters to the Governor at the Home Office Holding Centre, secondly, there is a document entitled "The Immigration Services Instructions to Staff on Detention, Annex A".

Thirdly, there is a letter by the Home Office Minister, Mr Nicolas Baker MP, to another Member of Parliament on 12th December 1994. The combined effect of those sources suggests that detention is only used as a last resort in immigration cases. In Mr McDonagh's letter five grounds are listed whereby may be taken into account only five relevant to this case. They are: "What are the person's ties with the United Kingdom? Does he have a settled address, employment? Are there close relatives (including defendants here)?" It does not appear that the Special Adjudicator, in this case, directed herself specifically to the Home Office Policy, if such it be, or to the factors embraced in it. It seems to me, as it seemed to Mr Justice Owen in another case recently, that this ought to be clarified. I therefore concur that the proposal should be limited to leave to apply in this case.

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