A Short Guide To Applying For Immigration Bail
New immigration detention powers came into force on 15 January 2018, primarily contained in Schedule 10 to the Immigration Act 2016. The new framework provides for a single power to grant immigration bail, available to both the Secretary of State and the First Tier Tribunal.
The newly published Guidance, which also replaces all previous guidance on temporary admission, temporary release on bail and release on restrictions, states that “Schedule 10 has replaced the various pre-existing alternatives to detention (temporary admission, temporary release on bail and release on restrictions) by a single power to grant immigration bail.”
Schedule 10(13) contains transitional arrangements for any person at liberty on the basis of previous alternatives to detention— the person is now to be treated as having been granted immigration bail under the same conditions.
Who is eligible for immigration bail?
Persons detained under the following provisions:
- paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention by immigration officers of persons liable to examination or removal)
- paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)
- section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State of persons liable to examination or removal)
- section 36(1) of the UK Borders Act 2007 (i.e. detention pending consideration or making of an automatic deportation order against a foreign criminal).
Even if no longer detained, if a person is still liable to be detained, or if the Secretary of State is considering whether to make a deportation order under s.5(1) of the IA 1971, a person may be granted or remain on immigration bail.
Who can exercise immigration bail powers?
Only the Secretary of State, has power to grant bail to a person who is liable to be, but who has not yet been, detained. The power to grant immigration bail is so wide, that merely being granted immigration bail, “does not prevent the person’s subsequent detention” as per Schedule 10(1)(6).
In a very slight nod, to the widespread condemnation of indefinite detention, the Secretary of State has a new duty to make an automatic referral to the Tribunal. The referral takes place four months after a person’s detention, and every four months after the latest consideration by the Tribunal of whether to grant bail to the person or withdrawal by a detained person of an application for immigration bail, as per Schedule 10(11).
The Tribunal has further restrictions on granting bail laid out in Schedule 10(3)(3)-(3)(4):
- The earliest the Tribunal may grant bail to a person detained under paragraph 16(1) of Schedule 2 (i.e. who is pending a required examination and pending a decision on leave to enter) is on the 9th day of the person’s presence in the UK.
- If directions for removal are in force, which require the detainee to be removed from the UK within 14 days or fewer at the day of the bail hearing, the Tribunal cannot grant immigration bail, without the consent of the Secretary of State.
While there is Guidance for Home Office Staff on First-tier Tribunal bail, the Tribunal Procedure Rules have not yet been updated to reflect the requirements of Schedule 10(12):
- If the Tribunal has already decided not to grant immigration bail, then it must dismiss further applications for bail without a hearing if, a) the application is made within 28 days of its previous decision, and b) the person does not on the papers demonstrate a material change in his/her circumstances.
- Preliminary views encouraging last-minute withdrawals run against the grain of the above provision, and are unlikely to be forthcoming, as they may result in repeat bail applications.
If the Tribunal grants bail, the Judge, with regard to the overriding objective, can decide whether management of bail should be transferred to the Secretary of State (Schedule 10(6)(3)). The Secretary of State can then amend, remove or add bail conditions to a person who was granted immigration bail by the First-tier Tribunal.
What are the relevant factors in granting bail?
As always, the Tribunal or Secretary of State will consider the following questions, in deciding whether to grant bail, and what conditions to attach:
- Length of Detention: How long is the person to be in detention, i.e. is there a realistic prospect of removal within a reasonable period?
- Compliance: How likely is it that the person will fail to comply with a bail condition? For example, given the previous compliance record, how likely is the person to abscond?
- Public Protection: Has the person been convicted of an offence (inside or outside of the UK)? How likely is the person to commit an offence while on bail? How likely is it that the person will cause a danger to public health, or be a threat to the maintenance of public order? Is the person’s detention necessary for their own interest, or to protect any other person?
- Risk factors: Are there any relevant factors, such as, is the person an Adult at Risk?
Revised Guidance on Adults at Risk, was drafted and laid before Parliament on 21 March 2018 and subject to parliamentary processes is said to come into force on 2 July 2018. Having compared it to the Previous Guidance on Adults at Risk, from August 2016, there appears to be only be two textual clarifications. Little is added in the first sentence of paragraph 1, and in paragraph 12, it is clarified that the list of indicators of risk is non-exhaustive: “Any other relevant condition or experience that may render an individual particularly vulnerable to harm in immigration detention, and which does not fall within the above list, should be considered in the same way as the indicators in that list.”
What conditions can be attached to a grant of bail?
Bail must be subject to one or more of the conditions listed in paragraph 2(1) of Schedule 10, which include:
- Appearance date condition – requiring the person to appeal before the Secretary of State or Tribunal at a specified time and place;
- Activities condition – restricting work, occupation or studies in the UK;
- Reporting condition – requiring the person to report the Secretary of State or another person;
- Electronic monitoring condition – recording and detecting a person’s presence at a location at specific times. Note this is a discretionary condition, as the mandatory paragraphs of Schedule 10 on electronic monitoring have not been brought into force;
- Residence condition – restricting where a person is to reside. If a person is granted immigration bail by the Tribunal subject to a residence condition, he/she is exempt from Right to Rent requirements and can secure accommodation in England at his/her own expense. Where a person has a residence condition, but would not be able to support him/herself, the Secretary of State may provide or arrange facilities for accommodation of that person, at that address, but only if there are “exceptional circumstances”, which are further explained in the Guidance;
- Financial condition – requiring payment of a sum of money from a “financial condition supporter” (i.e. surety) if a person to whom immigration bail is granted fails to comply with a bail condition. Note that the surety must be allowed to make representations before being required to pay. While, this condition may be attached to a grant of immigration bail, it cannot be imposed in isolation and must be an appropriate means of ensuring the bailed person complies with at least one of the other conditions. The Guidance also states that a financial condition of less than £500 should not normally be applied, for the non-rights-orientated reason that debt recovery would cost more than the actual debt;
- Such other conditions as the person granting immigration bail thinks fit.
How to apply for bail
While the Secretary of State may consider granting immigration bail, regardless of whether a person has submitted an application – a detained person who wishes to apply must use the official immigration bail application form – BAIL 401. According to the form and the new Guidance, decisions must be made within 10 working days.
For applying to be granted bail by the First-tier Tribunal, the application must be made on Form B1.
Contact our Immigration Barristers
For expert advice and assistance with a bail application, or representation at a bail hearing, contact our immigration barristers on 0203 617 9173 or via our enquiry form.