A new regime for immigration bail came into force in the UK earlier this year, marking a significant expansion of already extensive immigration detention powers.
It 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 overhaul comes at a time of increasing concern surrounding the use of prolonged, often indefinite detention of migrants in the UK. Some are unable to maintain their status for a variety of reasons or simply lack specific evidence to show or establish lawful immigration status in the UK. However from a quick look at the new rules, it is difficult to see how such concerns will be put to rest any time soon.
Immigration Bail: Key Features
The power to grant bail is conferred on both the Secretary of State and the First-Tier Tribunal.
The Secretary of State may grant bail even where a person is not detained but is liable to detention. However there is no equivalent power for the tribunal, which can only grant bail in situations of detention. Further, bail can now be imposed even on a person who cannot lawfully be detained (for example, because there is no realistic prospect of the person’s removal taking place within a reasonable time).
The tribunal is no longer permitted to grant bail in any circumstances for eight days after arrival or where removal is within 14 days (Schedule 10(3)), marking an expansion of the Secretary of State’s already extensive power to detain. On a more positive note, however, automatic bail hearings should be held for those who have been detained for four months and who have not applied for bail themselves or with the help of a lawyer.
Detainees are more likely to get bail if they can demonstrate that they have a place to stay and that they have at least one ‘Financial Condition Supporter’ who will attend the necessary hearings on the detainee’s behalf and guarantee payment of any financial penalties on their behalf if bail conditions are not complied with.
Immigration bail is not guaranteed, and detainees will find it harder to be granted bail conditions if they have a criminal record, if they have previously breached bail conditions or if their removal date is within 14 days of a bail application.
Home Office Bail:
The statutory power to grant immigration bail is in paragraph 1 of Schedule 10 of the Immigration Act 2016.
The power to grant immigration bail is available to the Secretary of State (or a person acting on behalf of the Secretary of State, such as an immigration officer) if a person is:
• Detained under any of the Secretary of State’s detention powers; or
• Liable to be detained under any of these powers.
In effect, this means that the previous concept of “temporary admission” no longer exists. Temporary admission was a status that allowed a person to be in the UK lawfully without being detained (before they have been granted leave to remain). This applied, for example, to asylum applicants who entered the UK lawfully and were given temporary admission while a decision was made on their case. From now on, any migrant lawfully in the UK without leave to remain (including asylum seekers) is technically on immigration bail.
An application to the Secretary of State for bail can be made anytime after arrival in the UK, using the official immigration bail application form.
A successful applicant will be granted bail subject to a number of conditions, which can vary in nature and can include (but is not limited to) the following:
• Reporting regularly to an immigration official;
• Attending an appointment or hearing;
• Restrictions on where they can live;
• Electronic monitoring by tag;
• Restrictions on work or studies;
• Compliance with all conditions agreed upon with the granting of bail.
The applicant or the applicant’s financial condition supporter might be subject to a financial penalty if they breach what is known as a ‘financial condition’.
The Home Office may unilaterally vary bail conditions without judicial scrutiny, for example by increasing reporting frequency. If bail conditions are breached, the applicant can be subject to the following:
• Tighter bail conditions;
• Potential criminal charges;
• Having to pay a penalty sum, payable by the applicant directly or by their Financial Condition Supporter;
• Immigration detention.
A grant of immigration bail to a person does not prevent the person’s subsequent detention and even if someone is granted bail, they can still be detained. Furthermore, Schedule 10(10)(1) provides a power of arrest for possible future breaches of bail conditions. The only test is whether the immigration officer or police officer has “reasonable grounds for believing” that a person is failing, or has failed, to comply with a bail condition or “is likely to fail to comply” with such a condition in future.
A grant of immigration bail ends when the person to whom it is granted is:
• No longer liable to be detained and the Secretary of State is not considering whether to make a deportation order against the person;
• Granted leave to enter or remain in the UK;
• Detained under one of the provisions mentioned in Eligibility for Immigration Bail; or
• Removed from, or otherwise leaves, the UK.
The power to grant immigration bail is available to the First-Tier Tribunal only if a person is already detained under any of the powers in paragraph 1(1) of Schedule 10. The Tribunal has no power to grant immigration bail to a person who is merely liable to detention but not actually detained.
A detained person who wishes to be granted bail by the Tribunal must submit an application in writing to the Tribunal using the allocated form. However the tribunal is no longer permitted to grant bail in any circumstances for eight days after arrival or where removal is within 14 days.
There will usually be a hearing to decide if an applicant should be granted bail. As most Immigration Bail applicants before the Tribunal are by definition in detention, they will not be required to be present for the hearing and can nominate their Financial Condition Supporter to attend on their behalf, or they can appear by video-link.
Bail can only be granted with Home Office consent where removal directions have been set and they require the person to leave the UK within 14 days of the date of the bail decision. It is not unheard of for a 14-day removal direction to arrive the day that the Home Office receives notice of a bail hearing.
If the tribunal refuses bail, an applicant cannot re-apply within 28 days, unless there has been a material change of circumstances.
After bail has been granted, an application to vary the conditions of bail can be made by both the detainee and the Home Office. The Immigration Bail provisions include restrictions and bail does not necessarily prevent a person’s detention. Bail is commonly subject to a series of conditions as listed above and includes sureties and a prohibition against working.
This is not a full, comprehensive explanation of the new provisions or how they will be applied. We have merely summarised some of the main features of the post-Immigration Act 2016 regime, as well as providing some practical considerations for those interested in making an application for bail using the new provisions. The Home Office can vary the conditions after bail has been granted.
Should you require further information or assistance regarding Immigration Bail and Detention, 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.