Getting Ready To Make A Bail application: Random Top Tips For Immigration Detainees

Without it needing to be prolonged, the fact itself of being held in immigration detention  can be quite distressing. Once a person finds themselves detained under immigration powers, it is very most likely with a view to deportation or removal. In such circumstances, the immediate question then becomes when and how best to submit a bail application.

Some several matters set out below may be worth considering  when preparing an application for bail.

(1)GENERAL BAIL CONSIDERATIONS

Whilst a person who is served with a notice of illegal entry, notice of administrative removal, or is the subject of deportation action is liable to detention, such a person may, as an alternative to detention, be granted temporary admission or release on restrictions.

Home Office policy   is that detention is to be used sparingly, and there is a presumption in favour of granting temporary admission or release on restrictions. Another alternative to detention is the granting of bail. The fundamental difference between temporary admission/release on restrictions and bail is that the former can be granted without the person concerned having to be detained, while the latter can only be granted once an individual has been detained and has applied for bail.

The power to grant temporary admission to illegal entrants and persons served with notice of administrative removal who are liable to detention under paragraph 16 is set out in paragraph 21(1) and (2) to Schedule 2 of the Immigration Act 1971 (and as amended by the 1988 Act). This provides that the grant of temporary admission in illegal entry or administrative removal cases

may be subject to such restrictions (on residence, employment and reporting to the police or an immigration officer) as may be notified to him in writing by an immigration officer. It follows that immigration officers, with the authority of a CIO, are able to grant temporary admission in all illegal entry and administrative removal cases liable to detention under paragraph 16.

A person who is the subject of deportation action who is detained or liable to detention may be placed on a restriction order, under paragraph 2(5) of Schedule 3 to the 1971 Act. This provides for similar conditions to be attached to the grant of release on restrictions in deportation cases to those in illegal entry and administrative removal cases, with the exception that it is for the Secretary of State to notify in writing any conditions attached to their release.

When a person is eligible for bail, the  relevant Home Office case owner is   required to notify a person  and/or his representative that he has the right to apply for bail and give the bail information and application forms (IS98 and IS98A for CIO or Secretary of State’s  bail, B1 for immigration judges bail).

If a CIO or the Secretary of State grants bail, two copies of the sureties recognizance (IS99A), should be signed by each of the sureties. An IS99 (applicant’s recognizance ) should also be completed, explained to the applicant and then signed by the applicant. Once a copy of both these forms are signed and returned, an IS100  is completed by the home office authorising release.

In England and Wales, neither CIOs nor the Secretary of State may take the recognizance in cash. The Home Office should no longer make the lodging of bail monies with representatives a condition of CIO or Secretary of State bail, nor should  they  ask the Tribunal, to make this a condition of bail. Since the enactment of the Proceeds Crime Act, Crime Courts, Magistrates Courts and the  Tribunal, have stopped the requirement to lodge funds, and representatives who are members of Law Society are not allowed to hold these funds under the Society’s rules.

CIOs or the Secretary of State may attach such conditions as are likely to result in the appearance of the person bailed at the required time and place. These conditions may include:

  • reporting to an immigration reporting centre or an immigration office/police station, normally on a monthly basis;
  • a requirement to live at a nominated address;

Amount of bail and acceptable sureties having regard to Home Office policy Guidance:

Enforcement Instructions and Guidance, Chapter 57 – Bail, states:

“57.6.1 Fixing the amount of bail The amount of bail should be viewed in relation to the means of the applicant and his sureties, and should give a substantial incentive to appear at the time and place required. Each case should be assessed on its individual merits but a figure of between £2,000 and £5,000 per surety will normally be appropriate. Where there is a strong financial incentive to remain here, it is justifiable to fix bail (or suggesting to the immigration judge that it be fixed) at a larger sum. Property such as houses or businesses, or cars, may be offered but they are difficult to seize and should be rejected unless there are wholly exceptional circumstances in view of the potential hardship this could cause to others who have no part in the bail application.

Few applicants will have at their disposal in this country sufficient means to meet such a sum. It may therefore be necessary to accept from the applicant himself a recognizance (or, in Scotland, bail bond) in a nominal sum (e.g. £5). If the recognizance or (bail bond) taken from the applicant exceeds the nominal sum because he has cash or assets here, this sum should be taken into account.

The applicant should be required to produce sureties who are willing to enter into recognizances for the payment of sums which satisfy the above criteria. The Procedure Rule 38 (2003) requires that any application for bail shall include the names, addresses, occupations and dates of birth of any persons who have agreed to act as sureties. Although sureties are not required under the Act, any decision to grant bail will normally be dependent upon the availability of nominated sureties.

57.6.2. Acceptable sureties

To be effective as a surety, a person needs to be able to exert some control over the applicant, thereby ensuring he complies with the conditions of bail. Officers will need to consider the nature of the surety’s relationship with the applicant as well as their geographical proximity. In order to be acceptable, a surety should:

  • have enough money or disposable assets (clear of existing liabilities) to be able to pay the sum due if bail is forfeited;
  • be aged 18 or over and settled in the United Kingdom. A person on temporary admission or with limited leave will rarely be acceptable as his own stay may be limited/curtailed;  
  • be a householder or at least well-established in the place where he lives;
  • be free of any criminal record. The gravity with which a particular offence is viewed and the consequent effect upon the bail application will be a matter for the discretion of the CIO or Secretary of State. Officers are reminded of the need to ensure that a conviction is not spent by virtue of the 1974 Rehabilitation of Offenders Act (see Rehabilitation of Offenders Act guidance)  
  • not have come to adverse notice in other immigration matters, particularly previous bail cases or applications for temporary admission;  
  • Have a personal connection with the applicant, or be acting on behalf of a reputable organisation which has an interest in his welfare. There must be some credible reason why a person should be prepared to act as a surety. Unsubstantiated claims to be a friend of the applicant should be treated with caution. Professional sureties suspected of acting for financial gain or with a view to aiding evasion should be rejected”.

Paragraph 2(5) Schedule 3 Immigration Act 1971 provides for the placing of restrictions on those who are liable to detention pending deportation. In cases where immigration detention (or continued immigration detention) is not considered appropriate but action to pursue deportation continues, home office policy states that it will normally be appropriate to impose restrictions under a Restriction Order in order to prevent absconding. A Restriction Order will normally impose:

  • a residency condition;
  • restrictions on the right to work; and
  • restrictions on recourse to public funds.

Restriction Orders also include some degree of contact management. Depending on the risk of absconding, reporting conditions and/or Electronic Monitoring may also be appropriate.

Electronic Monitoring combined with reporting to an Immigration Reporting Centre or police station is considered by the home office to provide the highest level of contact management and is likely to be appropriate in the highest risk cases. Restriction Order conditions must not contradict any of those in a prisoner’s release licence as the breaking of licence conditions may result in the licence being revoked.

A CIO or the Secretary of State can refuse bail orally or by means of a brief, written explanation, similar to that used when temporary release is refused. The CIO or Secretary of State must be able to provide reasons for refusing bail. If a CIO or Secretary of State is not prepared to grant bail, he should advise the applicant that he may apply to the Immigration Tribunal.

A CIO or the Secretary of State could justifiably use the exceptions in paragraph 30 to Schedule 2 of the 1971 Act (which apply to immigration judges) as reasons for not granting bail:

  • that the applicant has previously failed to comply with the conditions of any recognizance entered into by him;
  • that the applicant is likely to commit an offence unless retained in detention;
  • that the applicant’s release is likely to cause a danger to public health;
  • that the applicant is suffering from a mental disorder and that his continued detention is necessary in his own interests or for the protection of any other person.
  • that the applicant is under the age of 17, and arrangements ought to be made for his care in the event of his release and that no satisfactory arrangements for that purpose have been made.

Recognisance and sureties having regard to the Tribunal’s Bail Guidance:

The Presidential Guidance Note No 1 of 2012, Bail Guidance for Judges Presiding Over Immigration and Asylum hearings, 11 June 2012, sets out when and how a First-tier Tribunal Judge should consider granting immigration bail. This guidance is stated not to be binding because First-tier Tribunal Judges must apply the law and, if there is any divergence between the law and this guidance, the law will always be preferred. Nevertheless, First-tier Tribunal Judges should have regard to the guidance when considering bail applications and may need to give reasons if it cannot be applied in a particular situation.

The Guidance provides:

“4. In essence, a First-tier Tribunal Judge will grant bail where there is no sufficiently good reason to detain a person and lesser measures can provide adequate alternative means of control. A First-tier Tribunal Judge will focus in particular on the following five criteria (which are in no particular order) when deciding whether to grant immigration bail.

a.The reason or reasons why the person has been detained.

b.The length of the detention to date and its likely future duration.

c.The available alternatives to detention including any circumstances relevant to the person that makes specific alternatives suitable or unsuitable.

d.The effect of detention upon the person and his/her family (see para 20 below).

e.The likelihood of the person complying with conditions of bail.

In practice it is often not possible to separate one issue from the others and First-tier Tribunal Judges will need to look at all the information in the round”.

In relation to sureties, the Tribunal’s Bail Guidance provides:

“39.A First-tier Tribunal Judge may require an applicant for bail to produce sureties. This should not be an automatic requirement and the Judge must have due regard to the fact that people recently arrived in the country may have nobody to whom they could expect to stand surety for them. The purpose of requiring a surety in an appropriate case is to reduce the risk of a breach of bail conditions and increase confidence that the applicant will comply with all the conditions of bail. If there are no reasonable grounds for concluding that the applicant will abscond, a surety may well be unnecessary.

40.A surety’s principal obligation is to ensure that the applicant attends when required to do so. If the applicant fails to attend the surety risks losing all or some of the recognisance pledged to ensure that duty. A surety has no other obligations in law under the bail conditions. A surety need not reside at the same address as the applicant, and the degree of supervision that the surety may seek to exercise to ensure that the applicant attends when required is a matter for the surety in the light of the risk of the loss of the recognisance.

41.A judge’s confidence that bail conditions will be met may be increased where there is positive evidence that the surety is in a position to influence the actions of the person seeking bail and to be able to monitor the person’s activities should bail be granted. Confidence in a surety may be increased by the amount of the recognisance offered that should remind the surety of the principal duty.

42.A surety who has no immigration status, regular address, means of subsistence or knowledge of the applicant may well be unsuitable to act as such, as will a surety who has criminal convictions that are not spent. Details of sureties offered should be supplied in advance to the respondent who may well make background checks.

 43.If there are doubts as to identity or suitability of a proposed surety the judge will need to explore the facts and decide an amount (the recognisance) that will clearly focus his or her mind on the duties of a surety. A judge will need to verify the identity and residence of the proposed surety and their ability to stand in the sum offered. A surety should have been informed to bring some evidence of their ability to pay the recognisance if required to do so. What constitutes sufficient proof may depend on the size of the recognisance and other circumstances of the case. There is no inflexible rule. Bank statements for three months before the hearing date, a building society or other savings account of similar duration may be sufficient. Where a person offers wage slips as evidence of means some inquiry may be needed as to outgoings”.

Where a bail application is  made to the Tribunal and bail is granted by an Immigration Judge, a person granted bail will be made subject to a condition to ensure they maintain regular contact with the immigration authorities. Such contact can take a number of forms. The most common is a requirement for the person granted bail to report weekly to a Reporting Centre maintained by the immigration authorities. In addition to such reporting conditions, a First-tier Tribunal Judge can direct that a person be subject to electronic monitoring (“tagging”).  The relevant provisions for electronic monitoring are set out in s.36(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.  This condition is most likely to be imposed if bail is to be granted to a person who has previously committed a criminal offence where the immigration authorities have requested it as an additional safeguard for the protection of the public.

Relevant Home Office Guidance for consideration includes:

  • Enforcement Instructions and Guidance, Chapter 57 – Bail
  • Enforcement Instructions and Guidance, Chapter 56 – Home leave, TA, Reporting restrictions
  • Presidential Guidance Note No 1 of 2012, Bail Guidance for Judges Presiding Over Immigration and Asylum hearings, 11 June 2012,

(2)28 DAY RULE: TACTIFUL WITHDRAWAL

Under provisions in the Immigration Act 2014, if further applications for Immigration Judge bail are made within 28 days of a refusal the Tribunal is required to dismiss the application for bail without a hearing, unless the applicant can demonstrate a material change in circumstances since the Tribunal’s previous refusal. Where in the view of the Immigration Judge, there has been no material change in circumstances, the application will be dismissed on the papers and both the applicant and the Home Office will be informed. Where in the view of the Judge, the applicant has demonstrated a material change in circumstances, a bail hearing will be listed, following the normal process.

Where it seems that a bail application is most likely to be refused either just before or during bail proceedings and if an opportunity   presents itself, it might be better to withdraw the bail application.

(3)SETTING OF REMOVAL DIRECTIONS: TACTFUL COUNTER

Section 7 of the Immigration Act 2014 amends schedule 2 to the Immigration Act 1971 to allow that where notice to remove a bail applicant from the United Kingdom have been set and served within 14 days of the date of the bail hearing, the Immigration Judge can only grant bail if the Secretary of State consents. If the Immigration Judge announces their decision to grant bail, the presenting officer will be asked if the Secretary of State will grant consent. The presenting officer will seek instruction from a senior civil servant. If that consent is not given, the applicant will not be released on bail.

Where the presenting officer makes mere assertions that removal directions have been set but provides no such evidence, the bail Judge can be invited to consider that the consent of the Secretary of State is not required in the absence of a copy of the actual removal directions.

(4)COOPERATIVENESS AND AWARENESS OF HOME OFFICE RETURN GUIDANCE

Bail may be refused by reference to a seeming previous or current failure to cooperate with the home office in relation to the re- documentation process. The home office may require provision of relevant information or documents to assist them in in obtaining or issuing a return travel document during the course of deportation or removal proceedings.

The Presidential Guidance Note No 1 of 2012, Bail Guidance for Judges Presiding Over Immigration and Asylum hearings, 11 June 2012, states:

“20.When considering the length of immigration detention, a First-tier Tribunal Judge will take into consideration any periods where a person has obstructed the reasonable inquiries of the immigration authorities or during an appeal or other legal proceedings which have the effect of preventing further investigation or the intended removal. These factors may help explain why in many cases immigration detention remains connected to the issues of investigation and removal, but a First-tier Tribunal Judge must continue to consider what alternatives there are to detention, that will not interfere unreasonably with the functions of the immigration authorities, in order to reach a proportionate decision regarding bail”.

Home Office policy guidance states that where available, the person’s original travel document (usually their passport) must always be used for enforcing their removal. Where this is not available, people can be removed on the following types of document:

  • an emergency travel document (ETD)-: where there is no passport available, many countries require that an ETD is issued for the return of their nationals. ETDs are issued by the relevant embassy, high commission or consulate. The ETD re-documentation process is managed by Returns Logistics in the Home Office.
  • a European Union letter (EUL) -: a number of countries accept return of their nationals on EULs. EULs are produced by the Home Office locally at removing offices. The EUL re-documentation process is managed by the Returns Logistics team in the Home Office. Home office policy states that it is much quicker and more straightforward than the process of obtaining ETDs. EUL is a locally produced travel document used for removal purposes. If a person has no valid passport or travel document, the home office find out if they can remove a person on a locally produced EUL. There are no formal agreements about the use of a EUL and the continued acceptance of them depends upon the integrity practised by the UK in its use of the document. A country’s willingness to accept the return of their nationals on a EUL may change at any time.
  • a Chicago convention letter (CCL)-: This is also known as a Chicago convention document (CCD). CCLs are used to remove to countries that have signed up to the Chicago convention. The CCL re-documentation process is owned by Border Force operations advice and support (BF OAS). A CCL must only be used if a passenger presents either a forged travel document or holds no travel document and there is evidence of travel to the UK from a country which has signed the Chicago convention. CCLs are most effective if they are used shortly after a person enters the UK. The more time that passes between their arrival and removal, the less likely it is some countries will accept them.

Relevant Home Office Policy Guidance includes  Enforcing removals using EU letters and Chicago Convention letters , Version 14.0, 15 January 2016.

The Home Office also have a “Guidance on returning immigration offenders to their country of origin”, the Country returns guide: March 2016. The Guide contains the following information for each listed country:

  • the relevant country of intended return;
  • type of travel document required for return;
  • country liaison and documentation team and key contacts;
  • mission contact name and address;
  • minimum requirements for ETD, including fee;
  • timescale of obtaining ETD;
  • validity of ETD;
  • revalidation timescale;
  • removal direction notification period;
  • advance notice or special arrangements required by receiving authorities.

In response to a bail application, the home office may indicate in their bail summary that the time scale to obtain an emergency travel document is 2weeks and therefore removal being imminent, bail should not be granted. On the other hand, awareness of the relevant guide may indicate in fact that there is no established timescale for the issue of an ETD or that it may take one month or two months to obtain the relevant removal document from the Embassy. A counter argument would therefore be removal is not imminent. Section 35 of the Asylum and Immigration (Treatment of claimants etc.) Act 2004 applies in non-compliant cases.

Section 35 provides that a person may be required to take a specified action if the Secretary of State thinks that the action may enable a travel document to be obtained and that the document will facilitate the person’s removal. Section 35 action should only be taken against individuals who are eligible for removal from the UK. A person commits an offence if he fails without reasonable excuse to comply with a requirement to take specific action for the documentation process, and, if guilty, may be sentenced to a maximum of 2 years imprisonment and/or fine.Non-compliance with such a requirement can be:

  • Non attendance at a documentation interview;
  • Attendance at an Immigration Compliance and Enforcement (ICE) interview but refusal to answer questions or complete any part of the documentation process, i.e. -Not bringing supporting documentation when required to do so
  • -Not bringing family members when required to do so
  • Refusal to co-operate;
  • Providing incomplete information ;
  • Non-attendance or refusal to answer questions at Embassy or High Commission interview (either face to face or telephone);
  • Providing false information which results in the Embassy or High Commission rejecting the application.

Examples of what might constitute reasonable excuse include the failure to attend an interview because of a medical appointment or difficulties with transport, or needing time for further information. Any claim which is raised as a ‘reasonable excuse’ must be substantiated.

The following relevant home office policy guidance also provides further information:

Chapter 18 – Enforcement instructions and guidance, Amended instructions for documenting removals and the implementation of section 35 of the Asylum and Immigration (Treatment of claimants etc.) Act 2004 in non-compliant cases.

(5)ALERTNESS TO A POSSIBLE CLAIM FOR UNLAWFUL DETENTION

During the course of consideration of a bail application, the Tribunal Immigration Judge has no jurisdiction to declare detention unlawful.

The Presidential Guidance Note No 1 of 2012, Bail Guidance for Judges Presiding Over  Immigration and Asylum hearings, 11 June 2012 states;

“5. A First-tier Tribunal Judge’s power is simply to grant bail, which is itself a restriction of liberty. The judge has no power to declare the detention unlawful and give any relief if it is considered to be; such matters need to be decided in the Administrative Court or in a claim for damages. Given the wide ranging powers of the immigration authorities in relation to the detention of non-nationals, First-tier Tribunal Judges should normally assume that a person applying for immigration bail has been detained in accordance with the immigration laws. However, it will be a good reason to grant bail if for one reason or another continued detention might well be successfully challenged elsewhere.

17.Although a First-tier Tribunal Judge does not have the power to decide whether the length of detention in a particular case is excessive (and therefore unlawful), the judge must take into account the length of immigration detention because the period will be informative about why the person remains detained and whether they should continue to be.

19.The senior courts have been reluctant to specify a period of time after which the length of detention will be deemed excessive and as a result that bail should be granted. Each case turns on its own facts and must be decided in light of its particular circumstances. However, it is generally accepted that detention for three months would be considered a substantial period of time and six months a long period. Imperative considerations of public safety may be necessary to justify detention in excess of six months.

21.Detention of over a year has been held to be proportionate where there is a high risk of the applicant causing serious harm to the public. On the other hand, a period of weeks might be disproportionate where one of the effects of detention is to keep a parent apart from young children.12 In family cases detention would have to be compatible both with the right to respect for family and private life and the best interests of the child principle recognised by UN Convention on the Rights of the Child (November, 1990)13 and s. 55 of the Borders, Citizenship and Immigration Act 2009.

Home Office enforcement guidance( Chapter 55) states , “ Detention must be used sparingly, and for the shortest period necessary”, and “In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and ECHR case law. Detention must also be in accordance with stated policy on the use of detention”. In practice, however a person can be detained   past the point when it becomes no longer reasonable nor justifiable.

The power to detain an illegal entrant, seaman deserter, port removal or a person liable to administrative removal (or someone suspected to be such a person) is in paragraph 16(2) of Schedule 2 to the 1971 Act (as applied by section 10(7) of the Immigration and Asylum Act 1999).

Section 62 of the Nationality, Immigration and Asylum Act 2002 introduced a free-standing power for the Secretary of State (i.e. an official acting on the Secretary of State’s behalf) to authorise detention in cases where the Secretary of State has the power to set removal directions.

The power to detain a person who is subject to deportation action is set out in paragraph 2 of Schedule 3 to the 1971 Act, and section 36 of the UK Borders Act 2007 (automatic deportation). This includes those whose deportation has been recommended by a court pending the making of a deportation order, those who have been served with a notice of intention to deport pending the making of a deportation order, those who are being considered for automatic deportation or pending the making of a deportation order as required by the automatic deportation provisions, and those who are the subject of a deportation order pending removal.

Regulation 19(3)(b) of the EEA 2006 Regulations provides an anticipatory power of detention for cases being considered for deportation, meaning that EEA nationals and their family members who meet the criteria may be detained whilst a decision on deport is pending with criminal casework .

Home Office Guidance states that the power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used. Detention is stated most usually appropriate:

  • to effect removal;
  • initially to establish a person’s identity or basis of claim; or
  • where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.

To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy.

Home Office policy guidance states that in any case in which the criteria for considering deportation action (the ‘deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. The home office consider that due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.

The Home Office’s position is that criminal casework cases concerning foreign national offenders (FNOs), if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale.  If detention is appropriate, an FNO will be detained until either deportation occurs, the FNO wins their appeal against deportation, bail is granted by the Immigration and Asylum Chamber, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful.

Persons unsuitable for detention;

Enforcement Instructions and Guidance, Chapter 55 provides:

“55.10. Persons considered unsuitable for detention

Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.

In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.

The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:

  • Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).
  • The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.
  • Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this.
  • Those suffering from serious medical conditions which cannot be satisfactorily managed within detention.
  • Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
  • Those where there is independent evidence that they have been tortured.
  • People with serious disabilities which cannot be satisfactorily managed within detention.
  • Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).  

If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file”.

Depending upon the circumstances, it may therefore become necessary to challenge detention as unlawful and contrary to home office policy guidance via separate judicial review proceedings.

(6)MEDICAL CONDITION- NEED FOR DOCUMENTATION AND TREATMENT

Where there is awareness of a medical condition, be it psychological or physical, there is a need to have this documented and treatment received.

Rule 35 of the Detention Centre Rules 2001 sets out requirements for healthcare staff at removal centres in regards to any detained person:

  • whose health is likely to be injuriously affected by continued detention or any conditions of detention;
  • suspected of having suicidal intentions; and
  • for whom there are concerns that they may have been a victim of torture.

Healthcare staff are required to report such cases to the centre manager and these reports are then passed, via Home Office contact management teams in centres, to the office responsible for managing and/or reviewing the individual’s detention.

The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case.

Upon receipt of a Rule 35 report, home office caseworkers are required to review continued detention in light of the information in the report and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma.

If the detainee has an asylum or human rights claim (whether concluded or ongoing), consideration must be given to Detention Rule 35 process.

It is also important to note that medical notes can be obtained from the prison or immigration removal health care unit for a fee payable in advance. The medical notes and any Rule 35 report may be relevant for the purposes of bail or any relevantly commenced judicial review proceedings.

Relevant policy guidance includes:

  • Chapter 55,       Enforcement Instructions and Guidance
  • Detention Rule 35 Process
  • Detention Services Order 17/2012, (Replaces DSO 3/2008), Application of Detention Centre Rule 35

(7)MAKING AN ADVANCE SUBJECT ACCESS REQUEST IN ANTICIPATION OF A POSSIBLE JUDICIAL REVIEW CHALLENGE

A bail application may be unsuccessful, yet there may be a possibility of   a claim for unlawful detention.

It is important to seek to make a subject access request to the Home Office as soon as possible so as to commence or pursue such a claim with the best information available.

All information disclosed under a subject access request is a file copy.

A formal letter of request can be sent to the home office or the Subject Access Request Form obtainable from the home office website can be completed in order to make the request. The data that can be   provided by the home office includes:

  • Home Office files;
  • Work permit;
  • Visa applications forms( out of country applications);
  • Detention records( including removal escort data;)
  • Landing cards

A valid £10 cheque or Postal Order must be provided made payable to “Home Office Accounting Officer”.

The relevant address is :

Subject Access Request Unit

UKVI, Lunar House

40 Wellesley Road, Croydon

CR9 2BY

If the request is valid, the home office will acknowledge the request in writing and provide a reference number relating to the request and start processing the records.

The Home Office are required to process the request within 40 days from the date of receipt of the request but it is important to note that in some cases, they can take longer. In such circumstances, a formal complaint to the home office may enable speedier processing of the request.

(8)WHERE POSSIBLE, HAVE AN APPLICATION/REPRESENTATIONS OR APPEAL OF SOME SUBSTANCE PENDING:

First-tier Tribunal Judges will consider an applicant’s personal circumstances, including their incentives for keeping in contact with the immigration authorities. Without any representations pending with the home office or an outstanding appeal, bail may be refused on the basis that an applicant may abscond if released.

Where no claim is pending at the time of detention, subsequent identification   of a viable basis of resisting   deportation or removal is important with a view to submitting such a claim prior to making a bail application.

There are several possible basis for mounting a resistance to removal or deportation proceedings, including:

  • An asylum- ie a refugee claim;
  • A claim for Humanitarian protection;
  • Article 3 of the ECHR claim( e.g based upon medical grounds, general country conditions or prison conditions );
  • Protection provided to those who are stateless;
  • Protection provided to those who been subject to trafficking;
  • Article 8 of the ECHR – right to private and family life
  • EEA rights of residence

(9)TAKE ADVANTAGE OF SUBMITTING A NON – CHARGED ARTICLE 8 CLAIM WHILST IN DETENTION

By reliance upon the provisions below, there is no requirement to submit a charged postal application to the home office where making an Article 8 claim whilst in immigration detention.

Appendix FM, GEN.1.9. provides:

“(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable); and

(b) where an application or claim raising Article 8 is made in any of the circumstances specified in paragraph GEN.1.9.(a), or is considered by the Secretary of State under paragraph A277C of these rules, the requirements of paragraphs R-LTRP.1.1.(c) and R-LTRPT.1.1.(c) are not met”.

Paragraph 276AO of the Immigration Rules provides:

“276A0. For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable)”.

(10)OBTAIN WRITTEN CONFIRMATION FROM PROBATION SERVICE AS TO SUITABLITY OF INTENDED RELEASE ADDRESS

In relation to a bail applicant who has completed serving their criminal sentence, a bail Immigration Judge will expect to have sight of a recent letter from Probation Service confirming that the intended release address has been assessed and considered to be suitable as a release address.

Making an application without   writing to probation service and obtaining the relevant confirmation, is likely to result in either a refusal of bail or a withdrawal of the bail application.

(11)SECTION 4 BAIL RELEASE ADDRESS IN THE ALTERNATIVE

Friends or relatives may not be available to provide a bail release address. In such circumstances, an application can be made to the home office for Section 4 bail accommodation so that the obtained address may be included in the bail application form.

Section 4(1)(c) of the Immigration and Asylum Act 1999 gives the Secretary of State the power to provide facilities for accommodation to a person released on bail from detention under any provision of the Immigration Acts. A person who applies for bail could be an asylum seeker, a failed asylum seeker, or a person who has never had an asylum application but is otherwise in detention under any provision in the Immigration Acts.

An applicant who is in detention and intends to make an application for bail from detention under a provision of the Immigration Acts and requires the provision of a section 4 bail address,  must complete a Section 4 Support Bail Application Form and submit it to the Home Office Section 4 Bail Accommodation Team (“Section 4 Bail Team”).

The relevant contact details are:

Home Office (UKVI)

Section 4 Bail Team , 14th Floor (Short Corridor),

Lunar House, 40 Wellesley Road

Croydon, CR9 2BY

Fax: 0870 336 9368

In order to be eligible for support under section 4(1)(c), an applicant must demonstrate that they have been released on bail from detention under any provision of the Immigration  Acts, or that they are currently in detention, and intend to apply to be released on bail under any provision of the Immigration Acts.

In most cases following a grant of bail, initial accommodation will be used as a temporary section 4 bail address until dispersal to section 4 dispersal accommodation is arranged.  Due to the nature of initial accommodation, using this type of accommodation as a bail address is not generally appropriate if the applicant has a conviction for a violent, sexual or serious drug offence (bar minor possession), and/or Falls into a MAPPA category 1, 2 or 3, level 2 & 3.

In most cases following a grant of bail, an applicant will be moved from the initial accommodation being used as  a temporary section 4 bail address to section 4 dispersal accommodation. However, in circumstances where initial accommodation  is assessed as being inappropriate as a temporary bail address, if suitable, a section 4 dispersal address may be offered to the applicant as a provisional bail address to enable him/her to apply for bail.

Some foreign national prisoners detained under immigration powers will have completed the custodial part of their criminal sentence but still be under licence. In these cases any proposed section 4 address to be used if the person is released on bail must be approved by NOMS. On the advice of a NOMS Offender Manager, a foreign national prisoner requiring intensive post-release supervision may be placed in an Approved Premises actually provided by NOMS. Premises approved for license purposes (whether provided under COMPASS contracts or NOMS) are not available or relevant to offenders whose licence has expired.  If the applicant has NOMS provided Approved Premises available to them, which would mean that they have access to adequate alternative accommodation and their essential living needs will be met, the application for support under section 4(1)(c) will be refused.

If an applicant is assessed as being eligible for support under section 4(1)(c), in the majority of cases, an initial accommodation address is provided to the applicant as a temporary bail address, on the proviso that they will apply for and be granted bail from detention under any provision in the Immigration Acts.

The temporary bail address can be the address of any regional initial accommodation in the UK.

If an application for a section 4 bail address is successful, the Bail Team caseworker will send a  Section 4 Bail Address Grant Letter.

Upon receipt of the Section 4 Bail Address Grant Letter, the applicant will apply for bail by submitting a B1 form to the First-Tier Tribunal, using the address of the Regional initial accommodation provided in the offer letter as the bail address.

Following receipt of the B1 form, the First-Tier Tribunal will list the application, allocate a date for the hearing, and communicate the allocated bail hearing date to the applicant. The First-Tier Tribunal tries to ensure that bail hearings are held 3 working days from the receipt of the bail application.

In the event that bail itself is granted and the applicant is released, travel tickets will be provided by the detention centre to enable the applicant to arrive at their allocated initial accommodation address.

If bail is granted and the applicant moves in to their assigned initial accommodation bail address, arrangements will be made for the applicant to be dispersed to section 4 dispersal accommodation as soon as possible.

A person whose application for support under section 4 is rejected, or whose support under section 4 is discontinued has a right of appeal to the First-tier Tribunal, Asylum Support (Tribunal) against this decision under, section 103 of the 1999 Act, if the decision to refuse or discontinue support was taken on or after 31 March 2005.

The relevant Home Office instruction which  provides guidance on the provision of section 4 bail addresses to applicants who apply for immigration bail (First-Tier Tribunal) is, Section 4 Bail Accommodation.

(12)UNDERTAKE REHABILITATIVE COURSES ADDRESSING OFFENDING BEHAVIOUR

Whilst still serving a prison sentence, it may be best to show  pro – activeness in seeking to undertake rehabilitative awareness courses seeking to address the offending behaviour. This    can become relevant where corresponding supportive evidence is presented before a bail Immigration Judge.

The awareness courses undertaken must be relevant to the offending behaviour.

Documents such as pre-sentence reports, NOMS report, OASY’s report or   any forthcoming letters from probation service indicating the current level of   risk of harm, risk of re-offending and also clarifying the basis for such conclusions can be important and a bail Immigration Judge may wish to have sight of these documents.

(13)AVOIDING ADVERSE BEHAVIOUR WHILST IN DETENTION

Adjudications in prison or other adverse behaviour whilst detained in a removal centre are very likely to count against an applicant in relation to a future bail application. The Home Office Presenting officer’s bail summary is most likely to set out the relevant issues in advance of the hearing.

Adverse behaviour may result in the Immigration Judge refusing bail on the basis that there is a risk of reoffending, risk of harm to the public   or risk of absconding.

(14) OBTAIN LICENSE CONDITIONS

The Presidential Guidance Note No 1 of 2012, Bail Guidance for Judges Presiding Over Immigration and Asylum hearings, 11 June 2012, states:

“15.Where an applicant for immigration bail has recently completed a prison sentence, there may be licence conditions applicable. The judge should be aware of such licence conditions before imposing bail conditions. It would be unfair if the judge imposed conditions which were inconsistent with those imposed by the licence. Stringent bail conditions may not be necessary if there is already an obligation to report to a probation officer regularly.

38.First-tier Tribunal Judges will take into account the following points when deciding whether bail can be granted. In certain circumstances, bail in principle might be granted where the conditions for release cannot be immediately met. Bail in principle is discussed in the next section.

…………….

iv.A First-tier Tribunal Judge will take into account any licence conditions that apply to a person to be released on immigration detention. A First-tier Tribunal Judge should not grant bail with bail conditions that are contrary to any licence conditions. Details of the licence will be held by the Criminal Casework Directorate and should be provided by the presenting officer (as per the Probation Guidance contained in Annex 3)”.

Where the License it not before the Immigration Judge, if bail is not granted in principle, a bail application may need to be withdrawn to enable the necessary action to be undertaken. It is therefore prudent to obtain a copy of the license prior to making a bail application, in case the presenting officer does not provide it at the bail hearing.

(15) SEEKING LEGAL ADVICE WHERE POSSIBLE

It is important to consider obtaining legal advice from authorised legal representatives of own choosing or approval   as early as possible where following detention, it appears that the Home Office may take deportation or removal action as some matters can become complicated as the course of the proceedings advance further.

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