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Wildly unlawful bail policy gets only minor tweaks, for now

Wildly unlawful bail policy gets only minor tweaks, for now

The Home Office has released new interim guidance on the immigration bail accommodation system. The 15-page document introduces a couple of minor changes to address the High Court’s damning criticism of the department’s bail accommodation policies in Humnyntskyi v Secretary of State for the Home Department [2020] EWHC 1912 Admin, which concluded that the system “did not come close” to a minimum standard of fairness. 

Exceptional circumstances

The main tweak is to how “exceptional circumstances” that might justify a grant of bail accommodation are considered. Under this guidance, Home Office officials must now consider whether a person’s case raises “on its own merit” any exceptional circumstances that justify a grant of accommodation.

This isn’t really a change as such. Exceptional circumstances should have always been considered on a case-by-case basis, but the drafting of the previous guidance was criticised by the High Court for suggesting a “closed, exhaustive list” of circumstances that were considered exceptional. This approach was found to “fetter the discretion” granted to the decision-maker under Schedule 10 of the Immigration Act 2016.

The new guidance emphasises that officials must have regard to all available evidence and, “if the decision is taken not to grant accommodation, reasons should be provided to the individual as to why their circumstances have not been considered exceptional”. The requirement to provide reasons will hopefully ensure a higher standard of decisions and give some insight into an opaque process. 

The guidance also states that the discretion to grant accommodation under this section “should be used sparingly”. Without a rationale for this restriction, it is difficult to see how drafting like this doesn’t fetter the discretion of the decision-maker in a similar way to the exhaustive list of exceptional circumstances.

More to follow?

This guidance is only “interim” and the Home Office’s main immigration bail guidance remains unchanged. But the High Court’s findings of failure were pretty wide-ranging, so it’s likely it will take time for a comprehensive new policy to be produced.

Larry Lock

Larry works at Bhatt Murphy Solicitors. He has previously managed the Prisons Project at Bail for Immigration Detainees, and worked as a Senior Caseworker in the immigration department at Wilson Solicitors LLP.

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