Further to our previous blog that provided an overview of the introduction to the new system of immigration bail, on 2 May 2018, Judge Clements, the President of the First-tier Tribunal (Immigration & Asylum Chamber “IAC”) released detailed new guidance on immigration bail for judges.
The 19-page updated guidance takes into account the significant changes brought about under this new regime for immigration bail, which came into force in the UK earlier this year, marking a significant expansion of already extensive immigration detention powers. This new regime was brought in under the Immigration Act 2016 and implemented by the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017, which came into force on 15 January 2018.
The new guidance released by Judge Clements replaces the old Presidential Guidance Note, which was drafted back in 2012. The new guidance states that a bail hearing will be listed “as soon as possible, normally within three working days”. This timescale is yet to be tested, but over time it might prove difficult to maintain as it is no secret that the IAC Tribunal system is already very stretched.
In addition, the guidance, in accordance with the Tribunal Procedure Rules, requires that the Secretary of State provide both the Tribunal and the bail applicant with a document referred to as a ‘Bail Summary’, which sets out the grounds for the Secretary of State’s opposition to the bail application. The Secretary of State must also provide a copy of any removal directions. The new guidance states that if removal directions are not produced, the Tribunal “will not be able to show that the person applying for bail is subject to directions for the removal within 14 days”, suggesting that the Secretary of State’s arguments as to why bail should not be granted is subject to refusal.
As summarised below, the key elements of this new guidance are:
- An Immigration Judge is not to decide whether continued detention is lawful. However, the guidance goes on to state that if detention is deemed no longer justifiable before the Tribunal, bail should be granted.
- An Immigration Judge is not to automatically impose a residence condition. This means that Judges are no longer in a position to determine where an applicant may live. The grounds for this are that bail conditions should not restrict the freedoms of an applicant unless it is absolutely necessary.
- An Immigration Judge is not able to propose or encourage the withdrawal of bail applications, their powers only allow them to grant or refuse an application made to the Tribunal.
- Finally, in cases where the Secretary of State refers a case to the Tribunal for a bail hearing, the new guidance specifies that “special regard” would be needed concerning the length of the detention, given that “it is generally accepted that detention for three months would be considered a substantial period of time”.
This is not a full and comprehensive explanation of the new guidance or how the judges will apply it. The new guidance has been written in a way that could make for very fair conduct of immigration bail cases. This is merely an update to the previously summarised main features of the post-Immigration Act 2016 regime. There is no indication as to how effective this new system will be or how well it will be implemented. It is also important to note that the Secretary of State can vary the conditions after bail has been granted.
Should you require further information or assistance regarding immigration bail and detention issues, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.