Varying Immigration Bail Conditions
This guide is primarily for persons who have been granted immigration bail and are interested in applying to vary their immigration bail conditions. If, rather than seeking a variation of immigration bail conditions, you are interested in making an application for immigration bail, please see A Short Guide to Applying for Immigration Bail.
What are immigration bail conditions?
When a person is granted immigration bail, it must be subject to at least one of the conditions listed in paragraph 2(1) of Schedule 10 of the Immigration Act 2016. Each grant of immigration bail will therefore be subject to at least one of the following:
- A bail condition that requires the person to appear before the Secretary of State or the First-tier Tribunal ‘at a specified time and place’;
- A bail condition that requires the person to report to the Secretary of State or another specified person;
- A bail condition that restricts the person’s work, occupation or studies in the United Kingdom;
- A bail condition about the person’s residence;
- An electronic monitoring bail condition, which requires the person to co-operate with arrangements specified by the Secretary of State for detecting and recording the person’s location, presence in a location, and/or absence from a location at specified times by electronic means;
- Other bail conditions such as the person who is granting the immigration bail thinks fit.
Which and how many immigration bail conditions are imposed will depend on an individual’s particular circumstances. An additional financial condition attached to one or more of the immigration bail conditions above may also be imposed.
Persons who have been granted immigration bail may apply to vary the conditions imposed upon them.
Who has the power to vary the conditions of immigration bail?
Paragraph 6 of Schedule 10 of the Immigration Act 2016 confers the power to vary the conditions of immigration bail on the Secretary of State and the First-tier Tribunal. Any of the conditions imposed on a person’s immigration bail may be amended or removed, or one or more new bail conditions may be imposed.
The power to vary immigration bail conditions can be exercised by the Secretary of State if the immigration bail was granted by the Secretary State. The power can also be exercised by the Secretary of State if the immigration bail was granted by the First-tier Tribunal but the Tribunal has directed that the power can be exercised by the Secretary of State.
The power can be exercised by the First-Tribunal only when the grant of immigration bail was by the Tribunal and the Tribunal has not directed that the power may be exercised by the Secretary of State. However, the First-Tier Tribunal may not exercise the power to vary an electronic monitoring bail condition.
Variation of immigration bail conditions by the Tribunal
If immigration bail is managed by the First-tier Tribunal and a variation of immigration bail conditions is sought, an application should be made on Form B2 and sent to the nearest First-tier Tribunal hearing centre.
The Tribunal will notify the POU (Presenting Officers Unit) that serves the hearing centre and will request a response from the Home Office within seven days on form BAIL 304. If the Home Office consents to the variation of bail conditions, the Tribunal will usually consider the request on the papers and it is unlikely that the Tribunal will not agree to it.
However, if the Home Office does not consent to the variation, the Tribunal will write to the POU and the bailed person to issue an oral hearing notification. The hearing will follow the normal bail process. The First-tier Tribunal must then notify in writing the person on immigration bail if the Tribunal exercises or refuses to exercise the power to vary immigration bail conditions.
Variation of immigration bail conditions by the Secretary of State
If a variation of the conditions of immigration bail is sought and immigration bail is managed by the Secretary of State, the request should be directed to an immigration officer. The Home Office Guidance published 5 April 2019 provides that decision makers ‘must consider all requests for variation and grant reasonable requests where it is appropriate to do so’.
If the Secretary of State grants a request to exercise the power to vary immigration bail conditions, the decision maker will issue a grant/variation of bail form (BAIL 201) describing the change. If the Secretary of State refuses a request, the decision maker will issue a notification of refusal to vary bail conditions form (BAIL 406).
According to the Home Office Guidance, updating a change of circumstance (such as a change of contact telephone number) would not constitute a variation of an immigration bail condition unless for example it was a condition that the person be contactable on a specified telephone number.
Breach of immigration bail conditions
Under section 24(1)(h) of the Immigration Act 1971, it is a criminal offence for a person on immigration bail to breach an immigration bail condition without reasonable excuse. A person who does so is therefore liable to prosecution. Breach of a bail condition may also give rise to administrative penalties, such as variation of bail conditions or detention. It is therefore particularly important that persons on immigration bail continue to observe the conditions of their immigration bail until a decision has been taken to vary them.
Contact our Immigration Bail Barristers & Lawyers
For expert advice and assistance with applying for immigration bail or varying the conditions of immigration bail, contact our immigration barristers on 0203 617 9173 or via our enquiry form below.