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COVID-19 and Immigration Bail Applications
21 Apr 2020
Whilst the current pandemic has affected us all, those in detention are impacted in particularly harmful ways. Visits to immigration removal centres have been suspended, and those with COVID-19 symptoms are effectively placed in solitary confinement. The Council of Europe’s Commissioner for Human Rights has called for immigration detainees to be released, as many States have had to suspend removals and it is unclear when these might be resumed. The primary goal of immigration detention is to effect removal, and so continued detention as such may seem arbitrary.
In this context, those assisting or representing immigration detainees may wish to consider applying for immigration bail. This post seeks to assist by setting out some of the arguments which would bolster such an application in the current circumstances, in light of the applicable legal framework.
Practitioners will be familiar with Schedule 10 of the Immigration Act 2016, which sets out the statutory framework for immigration bail; the Guidance on Immigration Bail for Judges of the First-tier Tribunal; and the Tribunal Procedure Rules 2014.
In determining whether to grant immigration bail, Judges of the FTT must have regard to the six matters listed in paragraph 3(2) of Schedule 10 of the 2016 Act (Guidance ¶27). Amongst those matters, the following three may be particularly affected by the current pandemic:
(a) the likelihood of the person failing to comply with a bail condition;
(c) the likelihood of a person committing an offence while on immigration bail;
(f) such other matters as (…) the First-tier Tribunal thinks relevant.
Para 3(2)(a): Risk of Absconding
The first matter listed for consideration is the risk that an applicant for immigration bail will fail to comply with their bail conditions, once released from detention. The Bail Guidance sets out, among other factors, that the risk of absconding is likely to be low where there is no imminent prospect of removal (¶36). In the current pandemic, there is likely to be no imminent prospect of removal for many immigration detainees.
The travel advice for an indefinite period issued by the Foreign and Commonwealth Office to British citizens, in light of COVID-19, is to avoid all non-essential international travel. The Foreign Secretary has said that determining whether travel is essential is a personal decision and circumstances differ from person to person.
While this is advice for British citizens, the reasons cited are the unprecedented international border closures and other restrictions, and the fact that countries may restrict travel without notice. It will be difficult for the Home Office to arrange removal of immigration detainees in such circumstances. Indeed, there are various countries to which travel is not possible and the Home Office appears to have stopped removals to 49 countries for reasons relating to COVID-19.
Para 3(2)(c): Risk of Re-offending
If released, immigration detainees will be subject, of course, to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. They will need to follow the Government’s COVID-19 guidance, which is to only leave the house for very limited purposes: food shopping, exercise, medical or care needs, and work.
Compliance with this guidance is enforced through pro-active policing. The police approach is stated to be that officers will engage with the public, explain the regulations, and encourage those who are out without good reason to go back home.
Consequently, if released, applicants for immigration bail will be subject to severe restrictions on their movement, which will be pro-actively enforced by police. This means any opportunity for re-offending will necessarily be lower than in ordinary circumstances.
Para 3(2)(f): Other Matters
In addition to the reduction of risk associated with release, applications for immigration bail could also raise the danger to applicants themselves, if their detention is continued, as a relevant (if unconventional) matter.
In the recent Detention Action application for interim relief, the High Court accepted, as set out in Professor Cooker’s Report, that the congregate setting of immigration removal centre places detainees at a higher risk. Of course, the particular circumstances of the individual applicant may also mean that the risk that COVID-19 poses to their health is higher, and thus also worthy of consideration by the FTT. These factors may be raised alongside existing vulnerabilities – such as those who are victims of torture – which are likely to increase their susceptibility to illness.
On a proper assessment, the present public health crisis and ongoing lockdown should mean that the merits of applications for immigration bail may be strengthened due to the inherently lower risks of absconding and (re-)offending. The heightened risk to the health of immigration detainees due to the congregate setting may also be a matter considered relevant by FTT judges hearing such applications. Each case will of course depend on its own facts, and practitioners will be best placed to judge the relevance of certain arguments as they relate to specific clients.Back to News