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Immigration Bail: The New Routine
10 Sep 2018
Recently new Guidance on Immigration Bail for Judges of the FTT was published, replacing the Bail Guidance Note No.1 of 2012 and providing much needed clarity on the Tribunals’ approach to the changes to immigration bail introduced by Schedule 10 Immigration Act 2016 in January this year.
In the second of this two-part article on changes to immigration bail, Angelina Nicolaou and Eleri Griffiths consider new limits on the Tribunal’s power to grant bail, the imposition of bail for individuals who cannot be lawfully detained and the general shift in focus in terms of the factors to be considered when granting bail.
Angelina and Eleri are second six pupils at One Pump Court and accept instructions in Immigration (both), Crime (Angelina), and Housing (Eleri). Both regularly represent detainees in immigration bail hearings.
Limits on the Tribunal’s power to grant bail
Limiting the scope of judicial supervision is an unattractive proposition, yet under paragraph 3(4) of Schedule 10, the FTT must not grant bail to a detainee without the consent of the SSHD, if both of the following apply:
i. Directions for removal are in force
ii. Direction require removal within 14 days, starting with the date of the decision on whether the person should be granted immigration bail
How this works in practice is that if, despite the above conditions being met, a judge of the FTT is minded to grant bail, they will announce it in open court and issue a note setting out the reasons why bail should be granted. The Home Office Presenting Officer (PO) will then ask the Judge for a brief adjournment in order to seek instructions on the issue of consent from a Senior Civil Servant. The Home Office bail guidance makes clear that a view on consent cannot be reached before the hearing, as it must be informed by the evidence and subsequent legal arguments which emerge at the hearing. Notably, the Senior Civil Servant who makes the decision regarding consent is obviously not present in that hearing, and so the issues that arise will be told to them through a ‘verbal summary’ provided by the PO. The 2018 Judicial Guidance provides that if a Judge wants to grant bail in these circumstances a typed note should be prepared setting out the reasons bail should be granted and then provided to an official of the Secretary of State so that a decision on consent will be made.
The Home Office bail guidance, provides that “[T]he power to not to give consent may be exercised where for example, it is considered that the judge has not correctly weighed the high risk of absconding in coming to the decision to grant bail or given enough weight to public protection (if appropriate), the detainee’s immigration history, the risk of future failure to surrender to custody, lack of reliable sureties and lack of an appropriate address. This is not an exhaustive list of reasons why consent may be refused”.
The introduction of the notion of ‘consent’ to grant bail demonstrates a complete usurping of the Tribunal’s function in granting bail in these circumstances, however it must be queried whether in practice this will make much of a material difference to the outcome of such applications. Before paragraph 3(4), in instances where the SSHD has been able to show that removal directions were in force and would be effected within 14 days of the hearing, consent would have been required for ‘release’. Therefore, the concept of consent by SSHD is not necessarily new. In any event, in such
circumstances the exercise that a Tribunal would ordinarily have set its mind to before granting bail would have been whether or not removal was ‘imminent’.
In light of the indication provided in the case of R(MH) v SSHD1, it is likely that a Tribunal would have held that 14 days was imminent for the purposes of determining whether or not to grant bail. In that case it was held that: “…if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effective within, say, two weeks, will weigh heavily in favour of continued detention pending such removal…”.
There may however be certain people who should, notwithstanding an expected 14 day removal, be granted bail, such as those who are acutely vulnerable or those who should not be detained under the Adults at Risk policy.
In practice the Home Office bail guidance provides additional requirements on the SSHD where removal is scheduled for within 14 days of the bail hearing2. The following information must be included within the bail summary:
(a) Details of notice of removal, including notice of removal window, removal directions or a limited notice of removal,
(b) The contact details of the primary and secondary contact Senior Civil Servant, acting on behalf of the SSHD on the matter of consent, who will be available to provide instructions to the PO if the FTT judge intends to grant immigration bail; and
(c) Evidence of directions for removal being in force.
Therefore, it is not enough for a PO to simply make an assertion at the bail hearing that they have been informed that removal directions are in place, and as always practitioners will need to scrutinise the documents which seek to suggest that removal is imminent (including the Home Office having a valid emergency travel document). A Tribunal could be invited by the applicant to not consider itself as bound by the provisions within Schedule 10 para 3 if the SSHD has not complied with the guidance to provide clear details and evidence of likelihood that removal will actually take place. This is supported by paragraph 119 of the judicial bail guidance which specifically says that: “where individual liberty is affected the extent of any statutory powers being exercised should be precisely observed”. This is extremely important as the Tribunal’s hands should not be tied by bare assertions being made regarding imminence of removal.
Bail imposed on someone who cannot be lawfully detained (Sch 10 para 1(5))
Where it would otherwise be unlawful to detain a person, but they remain liable to detentioni or the SSHD is considering whether to make a deportation order against them, that person may now be granted and remain on immigration bail. This might occur where events following a grant of indefinite leave to remain cause SSHD to consider the deportation of that person to be conducive to the public good, or as the Immigration Bail Guidance explains: where there is no realistic prospect of a person’s removal taking place within a reasonable time.
The development is interesting when read alongside the rulings of both the Court of Appeal and Supreme Court in B (Algeria) v SSHD (SC) . On the question of whether there exists a power under the Immigration Act 1971 (“the 1971 Act”) to grant immigration bail (and it follows, impose bail
conditions) in respect of a person who can no longer be lawfully detained, the Supreme Court was unanimous and clear that it could not. Furthermore, a suggested intention by Parliament to confer the power to grant bail where a person had been unlawfully detained or could not lawfully be detained as “extraordinary”.
It must be remembered that a grant of bail is, in essence, the restoration of liberty for one who would otherwise be in detention. However, whilst an individual is not physically detained, immigration bail must be granted subject to one or more of the conditions set out in the schedule (at para 2(1)), which is in itself a qualification or restriction on the liberty. With this and the findings in B(Algeria) in mind, imposing bail on one who cannot be otherwise lawfully detained should be approached with extreme caution. Further, except where the transfer of bail management discussed above has occurred, the power to vary, add or remove conditions lies with the person who granted bail. This will inevitably be the SSHD where an individual is not already in detention and the option of the tribunal managing the bail conditions will not arise. Therefore, an individual may well face a situation where they cannot be lawfully detained but instead will be subject to stringent conditions imposed by SSHD which, if SSHD is unreasonable in setting, can only be challenged by the individual through a judicial review action.
Coupled with the Tribunal being unable in some cases to grant bail for any reason in the first 8 days after arrival in the UK, and the statutory requirement of consent where removal is set within 14 days, the legislation clearly demonstrates a move towards SSHD’s monopolisation of certain bail control.
Other notable changes in the Judicial Guidance Note 2018
Finally, the 2018 judicial guidance note explicitly states that Judges should not encourage withdrawals of bail applications as an alternative to refusing bail. Reference is made to the need for the Tribunal to be ‘robust’ in its handling of bail applications. The Tribunal should not, of course, fetter its discretion before having heard the application. However, it should be stressed it is not in accordance with the overriding objective, nor the interests of an individual’s liberty for an application doomed to failure on the basis of a discrete and narrow issue to not be dealt in the most efficient and realistic way. A Judge can accept a withdrawal request without having encouraged it.
What is absent from the 2018 guidance, which was outlined explicitly in the 2012 guidance was the fact that Immigration Judges were required to focus inter alia on the effect of detention upon the person and his/her family when deciding whether to grant immigration bail. It is extremely unfortunate that there isn’t a clear steer from the guidance that this is a relevant factor to be considered, particularly as reference to the need for detention to be compatible with Article 8 ECHR, the UN Convention on the Rights of the Child and s.55 of the Borders, Citizenship and Immigration Act 2009 is also removed. These factors are clearly still relevant as matters of significant importance when assessing an application, and where appropriate representations can still be made in that regard they should.
On a positive note, the guidance states that “it will rarely be necessary to question the person supporting the financial condition about whether they have any influence over the person to be released on immigration bail”, clarifying that the role of the financial condition supporter is not to exert control over the Applicant as is recurrently put forward in bail summaries. Indeed, as is long accepted, it is a matter for the supporter to satisfy themselves that they are willing to take a risk on the Applicant’s behalf.
Whilst much of the structure of what is now termed immigration bail has not been altered, the current regime undoubtedly offers more flexibility to SSHD in controlling the circumstances and conditions of immigration bail.
In particular, it appears that SSHD has in some cases up to three opportunities to restrict a person’s liberty: by refusing bail or granting it subject to conditions (which the legislation does not dictate requires an application), by opposing an application in the Tribunal, and finally, by transfer of bail management.
What hasn’t changed is that in all circumstances bail should not be refused without good reason or where a less intrusive measures can meet the risks of concern to SSHD. The same must apply also to bail conditions which ought not be more onerous than necessary. Regardless of where the decision to restrict someone’s liberty is being made, those principles must be brought to, and remain at the forefront of a decision-makers mind.
Angelina Nicolaou, Eleri Griffiths.
1. Guidance Note No.1 of 2018 on Immigration Bail for Judges of the First-Tier Tribunal: https://www.judiciary.gov.uk/publications/guidance-on-immigration-bail-for-judges-of-the-first-tier-tribunal/
2. Home Office Immigration Bail Guidance 8 May 2018: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705600/immigration-bail-v2.0ext.pdf i Where the person is being detained under the provisions set out in Sch 10 para 1(1).Back to News