How to apply for immigration bail

Every year, thousands of people are held in immigration detention while the Home Office decides their case or arranges their removal. Almost 23,000 people entered immigration detention last year, which was 11% more than the previous year. Bail is the most common way of leaving immigration detention. Unlike with criminal sentences, there is no fixed time limit on immigration detention in the UK, so knowing how to apply for bail, and when, can make the difference between someone spending weeks and months in detention.

Who can apply for bail?

Provided they have been in the UK for more than seven days, people in detention can apply for immigration bail if they have been detained:

• pending a decision by an immigration officer to grant or refuse leave to enter at the border, under paragraph 16 of Schedule 2 to the Immigration Act 1971;
• pending the making of a deportation order recommended by a court, under paragraph 2 of Schedule 3 to the Immigration Act 1971;
• where there are reasonable grounds for suspecting removal directions may be given or pending removal, under section 10(9) of the Immigration and Asylum Act 1999;
• pending a decision to give removal directions, or removal, under section 62 of the Nationality, Immigration and Asylum Act 2002; or
• pending a decision to deport, or the making of a deportation order against, a foreign criminal, under section 36 of the UK Borders Act 2007.

What matters is the power under which the individual is detained, not the venue of detention, i.e. whether it is an immigration removal centre or a prison. Broadly, if a person is detained for the purpose of removal or deportation action, they are likely to be eligible for bail.

Should an application be made to the Home Office or the tribunal?

An application for immigration bail can be made to either the Secretary of State (the Home Office) or the First-tier Tribunal. The Home Office is the body that has decided to detain the applicant, and a grant of bail by the Home Office requires an admission that its assessment was incorrect. Practitioners will appreciate how unlikely it is for the Home Office to go on to make such an admission.

Applying directly to the Home Office may be a useful tactical step though, as it allows you to learn its reasons for maintaining detention. Often, however, the reasons may be obvious, for example, where you are representing a foreign national offender.

Importantly, there is no requirement to apply to the Home Office before the tribunal.

On what basis might bail be granted?

Both the policy and the guidance are clear that there is a presumption in favour of granting bail. Reasonable alternatives to detention must be used where possible. In the tribunal, the burden is on the Home Office to show that it is more likely than not that there is no reasonable alternative to detention.

Under paragraph 3 of Schedule 10 to the Immigration Act 2016, the decision-maker must have regard to:

• The likelihood of the person failing to comply with a bail condition
• Whether the person has been convicted of an offence
• The likelihood of a person committing an offence while on immigration bail
• The likelihood of a person’s presence in the UK while on bail causing a danger to public health or being a threat to the maintenance of public order
• The necessity of detention for the person’s interests or the protection of any other person
• Whether the person has failed without reasonable excuse to cooperate with any process
• Such other matters as the tribunal thinks relevant

A cumulative view will be taken on whether the matters considered provide a sufficient basis for refusing bail. You should consider the following questions:

• Is removal imminent?

Imminence of removal is a key factor in assessing the likelihood of absconding. This is because if the applicant knows they will be removed in the near future, they are less likely to stay in touch with the Home Office upon release.

Even if removal directions are in place, or the Home Office has provided an anticipated timeline for removal, a barrier to removal may still exist. A barrier to removal includes an outstanding immigration application or appeal.

If removal is scheduled within 21 days of the bail hearing, and there is no barrier to removal, the Home Office’s consent is required for bail to be granted.

• Is there a history of compliance with conditions?

The decision-maker will assess the applicant’s history of compliance with immigration bail. Previous compliance increases the likelihood of future compliance. If the applicant has missed any reporting events in the past, you should take instructions on the circumstances surrounding the non-compliance. The applicant may have a reasonable excuse for having missed the appointment(s), which should be explained in representations.

• What are the applicant’s personal circumstances?

The applicant’s personal circumstances may have changed since any historical non-compliance. Factors pointing to a low risk of absconding include having a stable address, close family connections and a pending immigration application.

• Has the applicant been convicted of criminal offences?

People who are detained following a criminal conviction will often be on criminal licence. The guidance states ‘[t]he risk of absconding is likely to be low where the applicant is subject to criminal licence, which will provide for supervision and monitoring by the Probation Service.’ Remember, immigration bail is not for the purpose of punishing an individual for a criminal conviction.

How do I use the bail summary?

When an application is made to the First-tier Tribunal, the Home Office is required to produce a bail summary addressing the factors listed in paragraph 3 above, on the day prior to the hearing. Whether the Home Office complies with this requirement varies in practice – sometimes the summary is served at the eleventh hour, other times it is not served at all prior to the hearing.

The bail summary may not be accurate. It often seems to have cherry-picked which information to include based on a desire to maintain detention. It is essential to take full instructions from your client on the facts set out in the bail summary before it is relied upon in a bail hearing.

The bail summary will confirm whether removal directions are in place. If they are not, the summary will likely make vague assurances as to the length of time it will take to issue a pending decision and set removal directions thereafter.

These assurances must be scrutinised. For instance, the decision which the Home Office asserts it will make within a week, removing a barrier to removal, may in fact carry a right of appeal, which could prolong the barrier.

The length of time that the applicant has been in immigration detention can shed light on the imminence of removal, despite what the Home Office may claim in respect of timescales. Also, note paragraph 8 of the guidance, which states:

It is accepted that detention for three months would be considered a substantial period and six months a long period. Imperative considerations of public safety may be necessary to justify detention in excess of six months.

What conditions might be applied to bail?

Under paragraph 2 of Schedule 10 to the Immigration Act 2016, at least one of the following conditions must be applied to immigration bail:

• an ‘appearance condition’, requiring the person to appear before the Home Office or the First-tier Tribunal at a specified time and place;
• a condition restricting the person’s work, occupation or studies in the UK;
• a ‘residence condition’, requiring residence at a particular address;
• a reporting condition;
• an electronic monitoring condition;
• a condition requiring the person to be at a particular place between particular times, either on particular days or on any day;
• a condition requiring the person to remain within a particular area;
• a condition prohibiting the person from being in a particular area;
• such other conditions as the person granting the immigration bail thinks fit.

Electronic monitoring is a mandatory condition of bail if the person is detained pending deportation (under paragraph 2(1), (2) or (3) of Schedule 3 to the Immigration Act 1971, or section 36(1) of the UK Borders Act 2007).

The Home Office may seek the imposition of electronic monitoring on those with a criminal history irrespective of whether it is mandatory. It is important to remind the judge that it is not mandatory if deportation is not pending. Offenders may already have strict conditions imposed under their criminal licence, which renders it unnecessary to also impose electronic monitoring as a condition of immigration bail.

In almost all cases where electronic monitoring is imposed, the judge will make directions giving the Home Office 72 hours in which to fit the tag, otherwise the applicant will be released and the tag fitted later.

In most bail grants by the tribunal, an appearance and residence condition will be imposed. Usually, the tribunal transfers management of bail to the Home Office. In practice, this means that the applicant will be given reporting conditions by the Home Office on the date of their first appearance, which will be set by the judge.

Ask yourself whether any of the risks identified by the Home Office can be managed by imposing a condition. For example, will an appearance condition reduce the likelihood of absconding? Will a residence condition at a stable family home reduce the risk of re-offending?

If the applicant is required to have their residential address approved by probation, and that approval has not been received, this should not prevent an immediate grant of immigration bail. Paragraph 70 of the guidance is clear that immigration judges should not be concerned about the ability of an applicant to comply with the conditions of their criminal licence when determining immigration bail.

If conditional bail is granted, a review hearing will be listed. Sometimes, if probation is dragging its heels over approving an address, you can persuade the judge to vary the initial grant to remove the residence condition at this stage.

How do I draft the grounds?

The list of factors in paragraph 3, above, can act as a structure for the written grounds.

Ensure your grounds are succinct. Judges often hear numerous applications within a day and, in my experience, are unlikely to read lengthy representations, save for in exceptionally complex circumstances. I have been reprimanded by judges for the submission of lengthy grounds.

It may not always be necessary to address every factor listed within the grounds. You should assess which are the most pertinent to the facts of your case.

Under each factor, if there are legitimate risks, acknowledge them. Be specific about the conditions you say will help manage the risks, such as a residence condition to remain at a stable home. Identify any facts which reduce the risks, such as family commitments. For example, a foreign national offender may have had children since they last absconded and/or offended. If so, provide documentary evidence such as a birth certificate, and a witness statement from the other parent. In bail applications, less is more when it comes to evidence. The key is to provide enough to prove your point without over-burdening the judge with a huge bundle.

Emphasise that there is a reasonable alternative, i.e. conditional bail, which the law presumes is favourable over detention.

Is a financial condition supporter necessary?

A financial condition requires the payment of a sum of money by a supporter if the person granted bail fails to comply with another condition of their bail.

Although the decision-maker has discretion to require a financial condition supporter, it is not a prerequisite to a grant of bail. The guidance provides that ‘a financial condition cannot be imposed in isolation and should be the exception and not the rule’.

However, some judges appear to take a dim view of applications for bail which are not supported by a financial condition supporter.

Financial condition supporters are required to attend bail hearings. They may be examined at length, or they may be asked no questions at all.

Many judges decline to impose a financial condition, even if the applicant offers a supporter. But they often comment that the presence of proposed supporters at hearings, who declare they will support the applicant, has a positive influence on their decision.

If there is someone in the applicant’s network who can act as a supporter, it is worth proposing a financial condition. The sum offered by a supporter can be modest, so long as it is aligned with their means. Having people willing to act as supporters may increase the judge’s trust in the likelihood of the applicant’s compliance.

What happens if bail is refused?

There is no right of appeal in the event of a refusal. The quickest recourse is to reapply for bail.

If a judge refuses to grant bail, applications made within 28 days after the dismissal will be automatically dismissed, unless the applicant demonstrates that there has been a material change in their circumstances. This might include, for example, a development in the applicant’s immigration case, such as an appeal being lodged, which acts as a barrier to removal.

Circumstances are often evolving quickly on the ground, which requires careful consideration of the timing of an application.