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Immigration Bail: The New Routine
8 Aug 2018
Part I: Accommodation, Bail Management and the Future Compliance
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 this two part article, Angelina Nicolaou and Eleri Griffiths explore the changes brought about by the new immigration bail regime, and what this and the new bail guidance means for individuals, Home Office decision-makers and Tribunal Judges alike.
Angelina and Eleri are second six pupils at One Pump Court and are now accepting instructions in Immigration (both), Crime (Angelina), and Housing (Eleri). Both regularly represent detainees in immigration bail hearings.
The changes to immigration bail from 15 January 2018 saw a significant shift of power between the Tribunal and the Secretary of State for the Home Department (SSHD).
The adoption of an all-encompassing concept of ‘immigration bail’ to cover all types of situations where a person is at liberty pending immigration applications or proceedings is the first notable adjustment. There no longer exists the concept of temporary admission, temporary release on bail and release on restrictions. A person who was originally at liberty on the basis of one of the previous alternatives is now treated as having been granted immigration bail and the below regime changes will apply to them.
The new procedure for bail accommodation appears in practice to be one of the most controversial amendments. The introduction of the new Schedule coincided with the abolition of the provision of accommodation under section 4(1) Immigration and Asylum Act 1999. Consequently, unless they had been provided with, had applied for, or were appealing a decision to refuse such accommodation before 15 January 2018, a person will no longer be able to apply for accommodation under section 4(1). Whilst provision is made for the abolition of other section 4 accommodation, it is yet to take effect. Therefore, assistance for failed asylum seekers and their dependants under ss.4(2)-(3) of the 1999 Act is not yet affected by the changes and it is important for the Tribunal to be made aware that section 4 accommodation is still available for those groups of people.
Under schedule 10, the Secretary of State can arrange or provide accommodation facilities at a specified address where a person:
i. is granted bail subject to a condition requiring them to reside at a specified address, and
ii. would otherwise be unable to support themselves at the address, and
iii. there are exceptional circumstances for providing such accommodation.
The Home Office Immigration Bail Guidance of 8 May 2018 seeks to define ‘exceptional circumstances’ as broadly applying where the individual has been granted by SIAC with exceptionally strict bail conditions, poses a high risk of serious harm or reoffending (where assistance will be limited in any
event) or has no means of obtaining accommodation and requires it to avoid a breach of their human rights.
Consequently, individuals falling within Schedule 10 must now meet an exceptionality test rather than securing a bail address from the Section 4 Bail Accommodation Team on the basis of destitution. This should not result in destitute applicants falling through the gaps, as the Immigration Bail guidance is clear that where a person cannot access community or charitable support or lawful assistance from friends or family, and would therefore be street homeless or without shelter or funds if they are denied accommodation, accommodation ought to be provided to avoid a breach of article 3 ECHR.
What is less clear however, is how the scheme should operate in practice, and whether decisions are being made in such a way as to avoid unnecessary delays in release from detention. This must be a primary consideration when, in principle it is accepted that detention should end.
Previously, an applicant could obtain a grant of accommodation before the bail hearing and be granted bail on reliance of that grant. Now the position is less clear. There is no clear application process for schedule 10 accommodation as there was for section 4. Therefore at the date of hearing it will often be the case that the applicant cannot rely on a grant of support already being in place.
In practice, some Tribunal judges are reluctant to grant bail where there is no address provided at the date of hearing. However, it should be emphasised that the new Presidential Guidance suggests judges should not be deterred from granting bail in such circumstances. It states: “Where a person cannot offer a bail address, a judge may consider whether they might be eligible for support under schedule 11 to the 2016 Act (though the same arguably applies to Sch 10). If the applicant is so entitled, the judge can grant bail subject to such an address being provided within 14 days (or such other suitable period) and the applicant being released immediately the address is available. The period can be extended on application, and by consent, if necessary. If the likelihood of a bail address becoming available within a reasonable period is low, then it will be appropriate to consider whether other conditions such as more frequent reporting can be applied in the meantime rather than refusing bail. “[§58].
Whether or not the Secretary of State provides such accommodation is a matter for another Court. However, the Tribunal can (and arguably should) grant bail, even if conditional on an address being sourced. It is clear therefore that even where the likelihood of immediate accommodation is low, detainees ought not be left in detention in perpetuity. This is reinforced by paragraph 3(8) of Schedule 10 which states: “The commencement of a grant of immigration bail may be specified to be conditional on arrangements specified in the notice being in place to ensure that the person is able to comply with bail conditions”.
The provision to defer bail management to the SSHD
Under paragraph 6(3) and 6(4) of Schedule 10, the management of bail conditions can be transferred away from the Tribunal and into the hands of the SSHD. The SSHD must make a request of the Tribunal for this to take place. If the Tribunal so directs, any variation of bail conditions will be made unilaterally by the SSHD without reference to the Tribunal. Moreover, it operates as a complete transfer of power so that it is no longer within the Tribunal’s power to make a variation of bail conditions.
When making the bail application, there is an opportunity for the applicant to make representations on this matter on the form B1. The form requires the applicant to confirm whether or not they consent to the management of bail being transferred to the SSHD. It will be for the applicant to justify why they do not wish for this transfer to take place, and the Judge must consider the overriding objective
and the interests of justice when deciding. In practice it is clear that the position taken by the Applicant will vary, largely depending on the facts of the case. In situations where the SSHD has sought bail conditions far beyond that which were thought necessary by the Tribunal, it might be a prudent approach to request that the Tribunal retain jurisdiction.
The SSHD can make the request of the Tribunal in the bail summary or at the hearing. If the request is not made at these stages, the SSHD can contact the Tribunal using form B3 to seek to vary the conditions of bail and using this form can request to be granted the unilateral powers to vary bail. Alternatively, in using the form Bail 303 to inform the Tribunal that the individual has failed, is failing, or is likely to fail to comply with a condition of bail, the SSHD can make the same request.
Where bail is granted with financial conditions attached, and power to vary bail is placed in the hands of the SSHD, it will be for the SSHD to recover any payment liability in the event of breach.
It must be remembered that the provision gives a power to transfer, not a duty, and once the matter has been taken out of the jurisdiction of the Tribunal, the only appropriate venue to challenge a decision on bail conditions would be by way of judicial review. Therefore, if there are issues which would render bail management by the Tribunal more appropriate than SSHD, the Tribunal should be made aware of it in the hearing and before a decision on transfer is made. Conditions of bail obviously have a far reaching impact on the individual. They cover matters regarding where the applicant can live, whether and the extent to which they have to report to the Home Office, and the value of any financial conditions that may be placed on the Applicant or their friends or family members. The idea that the SSHD would be better placed than the Tribunal to make an impartial and practical judgement on these matters, weighing the relevant factors in the balance, is questionable.
Compliance with future bail conditions
Thirdly, bail can be refused by either the Tribunal or SSHD where there are reasonable grounds to believe in a future failure to comply with a bail condition. This provision was set out in the 2012 guidance for Judges as a factor influencing a decision on bail and now takes statutory footing as a mandatory consideration in bail decision-making alongside other factors in para 3(2) the Schedule.
Under paragraph 10 the Schedule, a person granted bail needn’t in fact breach a condition before being at risk of arrest as the power of arrest arises when an immigration officer or constable has reason to believe that the person is likely to fail to comply with a condition. They can then be detained and brought before the SSHD or tribunal as appropriate who will decide on whether the breach has or is likely to occur. Reason to believe is of course a low threshold and notwithstanding that it is invariably more difficult to prove that an individual is likely to break a condition rather than actually having done so, it will be of little consolation to the individual who has been subjected to the trauma of arrest and detainment unnecessarily.
Where the breach is found, the authority can elect to order that the individual is then detained under the original provisions under which they are liable for detention, or that they be re-granted bail with the same or varied conditions. However, where the individual on immigration bail in circumstances where they cannot otherwise be lawfully detained as discussed above, it appears that the options available to the decision-maker in that scenario will be limited to re-granting bail in any event
When considering this provision alongside the transfer of bail management powers, one can see the clear windfall of power which the Secretary of State might gain over a person’s liberty. Such power must of course be exercised reverently, though the limited avenue for challenging the management of bail inevitably places the individual at higher risk of re-detention.
Notwithstanding the sweeping and significant consequences of the above changes, these are only a few of the far-reaching adjustments brought about by Schedule 10 and clarified by the 2018 Presidential Guidance. Part 2 of this article will consider new limits on the Tribunal’s power to grant bail, the imposition of bail in situations where an individual cannot be lawfully detained and the general shift in focus in terms of the factors to be considered when granting bail.Back to News