Bail

Under the Immigration Acts,99 persons seeking leave to enter the United Kingdom, persons who are illegal entrants and those subject to deportation proceedings may be detained. Persons suspected of offences under the Immigration Acts may also be detained, although in those cases the rules relating to bail on criminal charges apply. Previously, decisions to detain persons had not been attended by independent judicial supervision. The 1999 Act seeks to remedy this situation by providing for bail hearings for those persons detained under the 1971 Act. The 1999 Act does not amend the right to bail, but provides that the Secretary of State may do so by way of regulations.100 The Secretary of State must arrange a reference to the court for it to determine whether the detained person should be released on bail.101 Exceptions to the section 44(2) duty to refer apply in relation to persons detained other than under a provision of the 1971 Act, or where a person is liable to deportation as a result of a recommendation of a court or if the person concerned has given written notice to the Secretary of State that he does not wish his or her case to be referred to the court.102 Section 46 provides that the court must release the detained person on bail, subject to exceptions. These exceptions include where the court is satisfied that there are substantial grounds for believing that, if released, he or she would fail to comply with bail conditions, or commit an offence while on bail, or be likely to cause danger to public health, or be a serious threat to the maintenance of public order.103 Also, the detained person need not be granted bail if the court is satisfied that he or she is or has been knowingly involved in a concerted attempt to enter the United Kingdom in breach of immigration law, or he or she is suffering from a mental disorder and his or her detention is necessary in his or her own interests or for the protection of others, or he or she is under the age of 18 and no satisfactory arrangements have been made for his or her care on release, or he or she is required to submit to an examination by immigration officers or medical examiners,104 or there are directions in force for his or her removal from the United Kingdom. A detained person also need not be granted bail if the court is satisfied that he or she falls within the national security provisions of section 3(2) of the Special Immigration Appeals Commission Act 1997, which provides that the Secretary of State has certified that his or her detention is necessary in the interests of national security, or that he or she is detained following a decision to refuse him or her leave to enter on the basis of national security or that he or she is detained following a decision to make a

deportation order on the grounds of national security. Where granted, conditions may be attached to bail.105 Where a condition is attached and has been broken, any recognisance or security may be forfeited.106 A power of arrest without warrant applies where an immigration officer or constable has reasonable grounds for believing that a released person has broken or is likely to break a bail condition.107