The UK Government’s single power of immigration bail: Keeping immigrants on a tight leash

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On 15 January 2018,  the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017 No. 1241,  commenced Sections 61(1) and (2) and 66 of the 2016 Act and the majority of the immigration bail provisions set out in Schedule 10 to the 2016 Act.

 

Schedule 10  replaced the various pre-existing alternatives to detention (temporary admission, temporary release on bail and release on restrictions) by a single power to grant immigration bail.

 

Following commencement of the provisions in Schedule 10, any person at liberty in the community on the basis of one of the previous alternatives to detention provisions is now to be treated as having been granted immigration bail, subject to the same conditions, under the single bail power.  Accompanying the  new provisions is  new Guidance, Immigration bail.

 

The fact that a person has been granted immigration bail does not prevent the person’s possible arrest and subsequent detention under one of the relevant  provisions mentioned  below. This allows a person on immigration bail to be detained pending an enforced removal, for example, where the person has been granted bail whilst waiting for a travel document which then becomes available.

 

ELIGIBILITY FOR IMMIGRATION BAIL

 

Any person detained, or liable to be detained, under any of the following provisions is eligible to be granted immigration bail by the Secretary of State:

 

  • paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention by immigration officers of persons liable to examination or removal)

  • paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)

  • section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State of persons liable to examination or removal)

  • section 36(1) of the UK Borders Act 2007 (detention pending automatic deportation)

A person who is liable to be detained under any of the above provisions can be granted, and remain on, immigration bail even if that person can no longer be lawfully detained (for example, because there is no realistic prospect of the person’s removal taking place within a reasonable time).

A person against whom the Secretary of State is considering making a deportation order under section 5(1) of the Immigration Act 1971 can remain on immigration bail even if that person is no longer liable to be detained.

A person is on immigration bail from when a grant of immigration bail starts to when it ends. These events are defined in paragraphs 1 and 3 of Schedule 10.  A grant of immigration bail starts from the time that is stated on the notice granting it. The notice may state that bail is conditional on certain arrangements being in place, and that it starts once those arrangements have been made.

A grant of immigration bail ends when the person to whom it is granted is:

 

  • no longer liable to be detained and the Secretary of State is not considering whether to make a deportation order against the person

  • granted leave to enter or remain in the UK

  • detained under one of the provisions mentioned in Eligibility for immigration bail

  • removed from, or otherwise leaves, the UK

 

TRANSITIONAL PROVISIONS

 

Under paragraph 13 of Schedule 10, regulations for commencing the Schedule treat people who had already been notified of their liability to detention and given restrictions as an alternative to detention (for example temporary admission, temporary release, release on restrictions and bail) as having been granted immigration bail in such circumstances and subject to the same conditions as were previously specified to the person.

This applies to the following:

 

  • a person on temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971

  • a person released from detention under that paragraph

  • a person liable to detention under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 but released by virtue of a direction of the Secretary

  • a person liable to be detained under paragraph 2(2) or (3) of that Schedule but was not so detained

  • a person released from detention under section 36(3) of the UK Borders Act 2007

  • a person released on bail from detention under any provision of the Immigration Ac

There is no requirement to contact these individuals separately to notify them of their transition onto immigration bail. However, when the person is next contacted they should be informed that they are now on immigration bail.

Below is the recommended wording  as set out in Home Office Guidance for explaining immigration bail to persons who have transitioned from their current restriction regime:

“Following a change in the law, your status in the UK is now described as ‘immigration bail’. Your presence in the UK was previously subject to restrictions or conditions under the Immigration Act 1971. The Immigration Act 2016 has replaced these parts of the Immigration Act 1971. The restrictions on your presence in the UK remain the same.”

A variation of the pre-existing conditions will need to be updated by the Home Office caseworker  and a BAIL 201 form issued to the person.

 

MAKING DETAINEES AWARE OF THEIR  BAIL RIGHTS

Information on immigration bail rights is contained in the reasons for detention form (IS91R or equivalent) issued to every detainee in detention.   The information in the form must be explained to the detainee, by Home Office Caseworkers,  using an interpreter if necessary. Information on immigration bail rights is also included in the monthly progress update to detainees (IS151F or equivalent).

Detainees must also be given BAIL 403 during their induction to detention. This contains information on:

  • when they can apply for immigration bail

  • how to make immigration bail applications to the Secretary of State (using form BAIL 401)

  • how to make immigration bail applications to the First-tier Tribunal (using form B1)

  • when they will be automatically referred for consideration for immigration bail

  • where they can obtain further information

For prisoners, the decision maker will send a bail prison pack and covering letter (BAIL 404) to the relevant prison team. This pack contains the following notices:

  • BAIL 403

  • form B1 • BAIL 401

  • BAIL 306 (if a financial condition is likely to be considered appropriate)

 

CONSIDERING WHETHER TO GRANT  BAIL

 

In considering whether to grant immigration bail to a person, and which conditions to attach to the immigration bail if granted, the Secretary of State or the First-tier Tribunal must have regard to the following:

 

  • the likelihood of the person failing to comply with a bail condition

  • whether the person has been convicted of an offence (whether inside or outside the UK)

  • the likelihood of the person committing an offence while on immigration bail

  • the likelihood of the person’s presence in the UK while on immigration bail causing a danger to public health or being a threat to the maintenance of public order

  • whether the person’s detention is necessary in that person’s interest or for the protection of any other person (for example, if a person is awaiting transfer to a mental health hospital)

  • such other matters as the Secretary of State or the First-tier Tribunal consider relevant (for example, the Adults at Risk in immigration detention policy)

 

SECRETARY OF STATE’S IMMIGRATION BAIL

 

The Secretary of State may consider for a grant of immigration bail a person who is detained – or who is liable to be detained – under one of the provisions mentioned  above in relation to eligibility for bail. The consideration may take place whether or not the person has submitted an application for immigration bail.

 

Bail without an application form:

 

In the following circumstances, the relevant Home Office  team can decide to grant bail without an application form, when:

 

  • a person is first encountered at a port or elsewhere in the UK, Border Force officers must complete an Immigration Bail Risk Assessment form as part of this process

  • a person is detained and a casework team proactively decides that detention is no longer appropriate

  • Criminal Casework decides not to detain a Foreign National Offender (FNO) for deportation action at the end of criminal sentence

Application for bail:

 

Detained persons must submit their applications for Secretary of State immigration bail using form BAIL 401.  If the decision maker receives an application in another format, it may be rejected and a BAIL 405 notice sent directing the person to the correct form.

 

Decision makers must make their decisions and send a response to the applicant within 10 working days of the date recorded under ‘date applied’.

If the person the decision make is  considering for a grant of immigration bail is not detained, they  must take into account the requirements set out above  under the heading “Considering whether to grant bail” and, in addition, the following:

 

  • the length of any likely additional period necessary to eliminate barriers to removal

  • any specific features of the case – such as those set out below – which indicate that detention is necessary

  • the reliability and standing of any Financial Condition Supporters

  • where appropriate, whether the person has a suitable settled address

  • any other factors relevant to the decision to detain

  • in Criminal Casework cases, any licence conditions

Indicators that a person is unlikely to comply with the conditions of immigration bail might include:

 

  • any history of escaping, or attempting to escape, from legal custody

  • previous breach or breaches of conditions of immigration bail – or its predecessors

  • statement from the person or the person’s Financial Condition Supporter indicating an intention to breach bail

  • the person’s immigration application sponsor, if any, refusing to act as Financial Condition Supporter because the sponsor does not believe the person will comply, even if other Financial Condition Supporters are produced subsequently

  • risk of offending or potential harm to the public, including on the basis of national security, terrorism, criminality

  • previous failed removal attempt owing to the individual’s disruptive behaviour or failure to comply with the documentation process

The above lists are not exhaustive. The decision maker  must assess each case on its individual merits, taking account of the person’s family, social and economic background, health (physical and mental) and immigration history. The decision maker  may still be able to grant immigration bail to a person with an adverse background or history if they produce sufficient and satisfactory Financial Condition Supporters or there are reasons to believe that the person will comply with bail conditions.

 

Foreign national offenders and financial conditions:

 

If the decision maker is   considering attaching a financial condition to one or more other conditions of granting bail to an FNO, the following should happen, if relevant:

 

  • if an application for Secretary of State bail (BAIL 401) is received, the FNO must provide details of possible Financial Conditions Supporters

  • if bail is being considered without an application from the detainee, the decision maker must ask the detainee for possible Financial Condition Supporters in the event of bail being granted

  • if bail is considered appropriate the decision maker must complete the BAIL 407 proposing the grant of bail and set the appropriate financial condition(s) and refer for authorisation

  • if bail is authorised, fully or conditionally, the decision maker must conduct any necessary checks on the Financial Condition Supporters – this must include any additional checks the authoriser may request with the intention to grant bail

  • the decision maker must send the BAIL 301 (Financial Condition Supporter Agreement) to the supporter by email giving 2 working days to sign and return:  if this timescale is unrealistic, for example if no email address is provided, it will be necessary to adjust it to allow for the BAIL 301 to be sent out and returned by post – decision makers may also allow Financial Condition Supporters more than 2 working days to return BAIL 301s sent by email if considered necessary,

Grant or refusal of bail:  ‘

 

Following receipt of a person’s application for immigration bail, decision makers must decide whether immigration bail should be granted or refused.

 

If the Secretary of State decides to grant immigration bail, the decision maker must notify the person in writing. The notice (BAIL 201) must include:

 

  • when the grant of immigration bail begins

  • the bail conditions

Under paragraph 3(8) of Schedule 10, the start of a grant of immigration bail may be specified to be conditional on arrangements stipulated in the notice being in place to ensure that the person is able to comply with the bail conditions. This provision is likely to be most relevant in cases where a grant of immigration bail is subject to:

 

  • a residence condition – while arrangements are made to secure accommodation if it is not already available

  • an electronic monitoring condition – while arrangements are made to install the necessary equipment

In Criminal Casework cases, decision makers should consider any criminal licence conditions fully to ensure any immigration bail conditions do not conflict.

If the Secretary of State refuses to grant immigration bail, the decision maker must notify the person using form BAIL 402 (refusal of Secretary of State Bail Application) and record it on the person’s detention and case progression review form.

There is no limit on the number applications for immigration bail a person can make to the Secretary of State, or when an application can be made. Where a repeat application has been made but there has been no change in the person’s circumstances, a bail application may be refused by cross-referring to the same reasons as the previous application.

IMMIGRATION JUDGE OR FIRST TIER  TRIBUNAL BAIL

 

A person who is detained under one of the provisions mentioned  above in relation to eligibility for bail, can apply to the First-tier Tribunal for a grant of immigration bail.

 

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2604/2014) govern the procedures to be followed in relation to bail applications to a judge of the First-tier Tribunal.

 

The application form for First-tier Tribunal bail (B1) is given to detainees at the point of initial detention. To make an application, the detainee, or their representative, sends the completed form to the First-tier Tribunal directly.

 

The role of the Home Office in First-tier Tribunal bail is to respond to the bail application by:

 

  • producing a bail summary (BAIL 505) to justify the Home Office’s case for detaining the individual and the reason(s) why bail should be refused, or what conditions would be considered appropriate should bail be granted

  • being represented by a Presenting Officer (PO) at the bail hearing, if applicable

The Home Office also has a duty to refer certain cases to the Tribunal automatically for consideration.

 

The Tribunal Procedure Rules require applications for immigration bail to be subject to a hearing. The exception is if a person’s bail application had been refused following a hearing in the preceding 28 days and there has been no material change in the person’s circumstances.

 

Her Majesty’s Courts and Tribunals Service (HMCTS) is responsible for listing bail hearings and this is, where possible, done within 3 working days of receiving a bail application. HMCTS must provide the Presenting Officers Unit with copies of bail applications as soon as reasonably practicable following receipt.

 

Detainees should normally attend their bail hearings, in person where practicable but usually by video link.

 

While it is not mandatory for Financial Condition Supporters to attend the bail hearing, the expectation is that they will attend and absence may well undermine the chances of a successful outcome for the detainee.

 

All parties are expected to bring any additional evidence that they intend to rely on. For example, Financial Condition Supporters must bring proof of identity and immigration status and would normally be expected to bring bank statements and proof that they can accommodate the detainee (for example, a tenancy agreement).

 

A First-tier Tribunal judge will grant immigration bail where there is no sufficiently good reason to detain a person and where lesser measures can provide adequate alternative means of control. In deciding whether to grant immigration bail, a First-tier Tribunal judge must have regard to the requirements set out above under the heading   “Considering whether to grant bail”.  A judge may also focus on:

 

  • reason or reasons why the person has been detained

  • length of detention to date and likely future duration

Additional information on what factors First-tier Tribunal judges normally consider in reaching a decision on bail applications is available in: Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber).

 

Home Office policy guidance makes it clear that Bail summaries must be full, fair and accurate. The decision maker completing the bail summary must ensure that all relevant issues are covered in the bail summary and must also include:

 

  • the detainee’s personal details

  • details of the Financial Condition Supporters the detainee has put forward, if any

  • a full immigration history and chronology

  • the reasons for opposing bail, if applicable

  • whether removal directions are set for the detainee to be removed from the UK within 14 days of the bail hearing

  • date of last hearing at which bail was refused, if any

  • the conditions the Home Office wishes to be set in the event that bail is granted

  • a request for the Tribunal to direct management of bail to be transferred to the Secretary of State

If immigration bail is granted by a judge of the First-tier Tribunal it is a matter for the judge to decide on the appropriate bail conditions, having regard to requirements relevant to Conditions of immigration bail and the guidance set out in Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber).

Consideration should be given as to whether the case should be transferred to the Secretary of State to manage the bail. If transfer is considered appropriate, the  Presenting Officer(PO) must make oral submissions to the judge requesting this.

If a bail application to the First-tier Tribunal is successful, the Tribunal must notify the detainee in writing and give a copy of the notice to the Secretary of State.

 

The notice must specify:

 

  • when the grant of bail starts

  • the bail conditions.

The start of a grant of immigration bail may be specified to be conditional on arrangements stipulated in the notice being in place to ensure that the person is able to comply with the bail conditions. The judge’s clerk will complete and provide the necessary documents to the parties. The clerk is also responsible for notifying the immigration removal centre if the detainee is not present in court.

 

If a bail application to the First-tier Tribunal is unsuccessful, the Tribunal must notify the detainee in writing and give a copy of the notice to the Secretary of State. The judge’s clerk will complete and provide the necessary documents to the parties.

STATUTORY LIMITATIONS ON THE TRIBUNAL’S POWER TO GRANT BAIL

 

The power of the First-tier Tribunal to grant immigration bail is subject to the following statutory limitations

 

Detention under paragraph 16(1) of Schedule 2 :

 

Under paragraph 3(3) of Schedule 10 to the Immigration Act 2016, the First-tier Tribunal must not grant bail to a person detained under paragraph 16(1) of Schedule 2 to the Immigration Act 1971 until the end of a period of 8 days since the person arrived in the UK. This means that the earliest point at which the First-tier Tribunal can grant immigration bail to a person detained under paragraph 16(1) of Schedule 2 to the Immigration Act 2016 is on day 9 of the person’s presence in the UK.

 

This limitation only applies to people detained under paragraph 16(1) of Schedule 2. It does not extend to those detained under paragraph 16(1A) of the Schedule.

 

Consent to bail: directions in force for removal within 14 days of bail decision:

 

Under paragraph 3(4) of Schedule 10, the First-tier Tribunal must not grant bail to a detainee without the consent of the Secretary of State if both of the following apply:

 

  • directions for the detainee’s removal from the UK are in force (and are not withdrawn)

  • the directions require the detainee to be removed from the UK within 14 days, starting with the date of the decision on whether the person should be granted immigration bail

This means that, if the Presenting Officer provides evidence that removal directions are set for 14 days or fewer away at a bail hearing, the First-tier Tribunal cannot grant immigration bail if the Secretary of State does not consent.

Directions for removal do not have to have been given to or served on the detainee to be in force. Under paragraphs 8-10A or 12-14 of Schedule 2 to the Immigration Act 1971 directions for removal are given to the carrier by which the person is to be removed. This includes removal by way of charter flights. Removal can only take place if directions are properly given in accordance with these paragraphs.

For these purposes, evidence of directions for removal being in force can be demonstrated when any of the following has been served on the detainee and/or the carrier that is required to conduct the removal:

 

  • IS151D (notice that removal directions have been issued, given to the individual)

  • IS151G (limited notice that removal directions have been issued, given to the individual)

  • IS 83 (directions to remove individual issued to the carrier in port cases)

  • IS 152B (directions to remove individual issued to the carrier in non-port cases)

  • ISE 312 (notice of deportation arrangements)

  • flight manifest (directions given to the carrier for a charter flight)

 

Repeat applications for immigration bail:

 

Paragraph 12(2) of Schedule 10 requires Tribunal Procedure Rules to secure that if the First-tier Tribunal has decided not to grant a person immigration bail, the Tribunal must dismiss any further application for the person to be granted immigration bail without a hearing if both of the following apply:

 

  • the application is made within 28 days of the earlier decision

  • the person does not, on the papers, demonstrate to the Tribunal that there has been a material change in the person’s circumstances

 

SECRETARY OF STATE’S AUTOMATIC  REFERRAL FOR CONSIDERATION OF IMMIGRATION BAIL

 

There is a  legal obligation to refer detainees to the First-tier Tribunal automatically, to be considered for immigration bail.

 

Paragraph 11 of Schedule 10 imposes a duty on the Secretary of State to arrange a referral to the First-tier Tribunal for a decision on whether to grant immigration bail to a person detained under any of the following:

 

  • paragraph 16(1), (1A) or 2 of Schedule 2 to the Immigration Act 1971

  • section 62 of the Nationality, Immigration and Asylum Act 2002

The Secretary of State must make the referral to the Tribunal four months after the beginning of the person’s detention (unless the Tribunal has considered a bail application in respect of the person in the interim period) and every 4 months thereafter.

 

If a person has submitted a bail application himself or herself in the interim period, the four-month period for automatic referral is calculated from the date the Tribunal last considered whether to grant immigration bail to the person.

A reference made by the Secretary of State to the Tribunal, automatically, for consideration of immigration bail is to be treated as a bail application to the Tribunal. If a person withdraws such an application, the four-month period for the next automatic referral is calculated from the date the application is withdrawn.

If a person makes an application for immigration bail to the First-tier Tribunal but the Tribunal is prevented from granting bail because of the Secretary of State has refused consent, that particular consideration of bail by the Tribunal is disregarded in calculating the four-month period for automatic referral.

The duty to arrange consideration of bail before the Tribunal does not apply to those detained pending deportation under paragraph 2(1), (2) or (3) of Schedule 3 to 1971 Act or section 36(1) of the UK Borders Act 2007.

 

It also does not apply if:

 

  • section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in the interests of national security) applied to the person

  • the person has given – and has not withdrawn – written notice that he or she does not wish for his or her case to be referred to the Tribunal for consideration for immigration bail in line with the duty

Relevant date for referral :

 

A referral must be made where 4 calendar months have elapsed since the most recent of the following events, the:

 

  • start date of the person’s current period in immigration detention

  • First-tier Tribunal last considered whether to grant the person bail

  • person withdrew an application for bail made on their behalf by the Home Office

  • person withdrew notice that they did not wish for the Home Office to refer them to the Tribunal for bail consideration

Automatic referral process :

 

 Opt in:

 

If the detainee agrees to opt in to the automatic referral process they will be asked to complete the Tribunal bail application form (B1) but not to sign the form. The Presenting  Officer’s Unit(POU) will update the application date.  Forms B1 and BAIL 502 (Automatic Bail Referral Covering Letter) will be sent to the POU who will forward them to the hearing centre and the case will be dealt with under the standard application process.

 

If the detainee signs the B1 Tribunal bail application form, the Tribunal may take this as an actual application for bail by the detainee and may not treat it as a referral from the Home Office. In such a case, the BAIL 502 should not be sent; instead the signed B1 should be sent to the POU who will forward to the Tribunal as a normal application for bail

 

Opt out:

 

If the detainee wishes to withdraw from the automatic referral process they should complete the BAIL 501 form accordingly and return this to the decision maker.  If the detainee changes their mind they can opt back in to the process using the BAIL 501 form.

 

No response:

 

If the detainee refuses to cooperate with any part of the process and no B1 or BAIL 501 form is received within 5 days of their being notified, the decision maker must update CID notes and send an Automatic Referral Covering Letter – no response

(BAIL 503) to the Tribunal requesting a hearing and send the documentation to the POU. The POU will send the BAIL 503 to the hearing centre and the case will be dealt with under the standard application process but without input from the detainee.

 

Auto-referral and accommodation:

The detainee will need to detail on the application where they plan to live or if they have no fixed accommodation. If they are a failed asylum seeker or have a current asylum claim and wish to apply for support under section 4(2) or section 95 of the Immigration and Asylum Act 1999, they will need to do this themselves.

If the Secretary of State is proposing a residence condition (for example, to avoid a breach of the person’s ECHR Article 3 rights), the decision-making team will need to provide this information on the referral. If the individual will be unable to support themselves, the decision-making team will need to arrange the accommodation.

 

GENERAL IMMIGRATION BAIL CONDITIONS

The grant of immigration bail to a person must be subject to at least one condition. The conditions imposed must:

 

  • enable the Home Office to maintain appropriate levels of contact with the individual

  • reduce the risk of non-compliance, including absconding

  • minimise potential delay in the Home Office becoming aware of any noncompliance

Home Office Decision makers may also impose a financial condition but this must be in addition to – and attached to – one or more of the above conditions.  When setting a condition of immigration bail, the Secretary of State must be satisfied that the individual will be able to comply with that condition from the start of a grant of immigration bail.  The number and type of immigration bail conditions to impose will vary depending on the circumstances of the individual case.

Appearance before the Secretary of State  or the First Tier Tribunal:

A condition requiring the person to appear before the Secretary of State or the First-tier Tribunal at a specified time and place. This is for a one-off event and not for a regular reporting condition such as attending travel documentation or other application-related interviews at the Home Office or a place of immigration detention. A condition requiring appearance before the Tribunal at a required time and place would usually be necessary where a person has on-going proceedings before the Tribunal.

Restriction  on working, occupation or studies:

A condition restricting the person’s work, occupation or studies in the UK. If the person being granted immigration bail does not have any leave to enter or remain in the UK, it will be considered appropriate to impose a bail condition restricting work and studies in the majority of cases.   It may also  be appropriate to impose an immigration bail condition that restricts a person’s work, occupation or studies if that person had leave permitting these activities but that leave has been curtailed. Home Office policy guidance also states that it may  be appropriate for European Economic Area citizens who are granted immigration bail pending deportation action. Where dealing with a family group,  Home Office decision makers  may specify that a child may only attend a named school (the one they already attend or will be attending) to ensure a family stays within a particular location.

Residence condition:

A condition about the person’s residence: It will not usually be necessary to impose a residence condition. A residence condition should only usually be imposed where residence at a particular address is necessary to enable a high level of contact or mitigate against a serious risk of noncompliance. This is more likely where the person poses a high risk of harm to the public on the basis of criminality or in cases concerning national security. This does not mean that people granted immigration bail do not need to provide a contact address and they can, for example, be subject to a condition which requires them to keep the Home Office informed of their contact details, including their current place of residence.

Asylum seekers and failed asylum seekers accommodated by the Home Office under section 95, 98 and 4(2) of the Immigration and Asylum Act 1999 do not need to be subject to a residence condition unless there are specific reasons why they must live at a particular address. Where this is the case, decision makers may impose a residence condition specifying that they live at “an address which will be separately notified to you by your accommodation provider”.

Decision makers must not apply a residence condition to a grant of immigration bail if both the following apply:

 

  • -the individual is disqualified from renting – individuals who require leave to enter or remain but do not have it are disqualified from renting unless they have permission to rent (permission to rent currently only applies if the address is in England)

  • the address in question is ‘private rented property’, that is, accommodation covered by a residential tenancy agreement as defined by section 20 of the Immigration Act 2014 (this means that rent must be being paid for the accommodation, although this rent does not have to be the market rate nor paid by the disqualified person)

Home Office Decision makers must also not apply a residence condition to a grant of immigration bail if the Home Office is serving a civil penalty Referral Notice or Notice of Letting to a Disqualified Person (NLDP) on a landlord at the address in question.

When considering if it is appropriate to set a residence condition, decision makers may also wish to consider any landlord civil penalties or NLDPs served on the landlord of the property in question as relevant factors in reaching a decision.

When considering whether to set a residence condition requiring an individual to live in private rented property, decision makers must consider any case against the Permission to rent criteria which set out where the Home Office will grant permission to rent to migrants who do not have a right to rent. If the person meets one or more of the criteria, they may be granted permission to rent in accordance with the guidance.

Permission to rent will normally be granted to individuals who have been granted bail by an immigration tribunal or the courts, which contains a residence condition and/or electronic monitoring condition.

Reporting to  the Secretary of State  or other person specified:

A condition requiring the person to report to the Secretary of State or other person specified: A reporting condition, if imposed, should normally require a person to report to an immigration reporting centre. The Home Office has 14 immigration reporting centres in the London and South, North, Midlands and Wales, and Scotland and Northern Ireland regions. Decision makers must not set a reporting condition requiring a person to report to a police station if an immigration reporting centre is available. If reporting to a police station is considered essential the frequency will need to be agreed between the Reporting and Offender Management and the police station.

If the case remains unresolved after 3 years and the person has complied with the conditions of their immigration bail, reporting conditions may be lifted (unless removal is imminent), following consultation with the Home Office caseworker). If a person fails to attend a reporting event, the police will report this to the (ICE) team for appropriate action. The decision maker must inform the appropriate police station when a case is completed.

Electronic monitoring condition:

An  electronic monitoring condition: A person may be granted immigration bail subject to an electronic monitoring condition if justified by the circumstances of the case.

An electronic monitoring condition is a condition that requires the bailed person to cooperate with any arrangements the Secretary of State specifies for detecting and recording by electronic means one or more of the following. The bailed person’s:

 

  • location at specified times, during specified periods of time or while the arrangements are in place

  • presence in a location at specified times, during specified periods of time or while the arrangements are in place

  • absence from a location at specified times, during specified periods of time or while arrangements are in place

The arrangements with which the person must cooperate may include the bailed person:

 

  • wearing an electronic monitoring device and facilitating arrangements for its detection, which may include installation of electronic monitoring equipment at a specified address

  • making specified use of an electronic monitoring device

  • communicating in a specified manner and at specified times or during specified periods

  • allowing people other than the Secretary of State or the First-tier Tribunal to exercise electronic monitoring functions

The electronic monitoring(EM) period must be no longer than the minimum period necessary to maintain the continued operation of the electronic monitoring system (usually a short period once each month), unless a separate curfew condition is set.

EM is more likely to be appropriate as a condition of bail where a person poses a high risk of harm to the public on the basis of criminality and/or in cases concerning national security.

EM is less likely to be appropriate in any case where a person is granted immigration bail from a position of liberty (for example, on arrival at the border or submission of an in-country application).

EM must not be imposed on a person under the age of 18.

Currently, electronic monitoring cannot be imposed as a condition of bail if a person does not have fixed accommodation. This is because of the use of radio frequency tags where the equipment needs to be set up in a fixed location.

Under current arrangements, EM can only be implemented in practice if accompanied by a curfew requirement. If the First-tier Tribunal grants bail with an EM condition but no curfew condition, it will not be possible to install EM equipment under current arrangements. In this situation, if the First-tier Tribunal has not transferred bail management to the Secretary of State, the decision maker will need to write to the First tier Tribunal to request a variation in conditions to include a curfew requirement, explaining that the electronic condition cannot be implemented without a curfew. If the First-tier Tribunal refuses to impose a curfew, the electronic monitoring  condition cannot be activated while the person remains on First-tier Tribunal bail.

If the First-tier Tribunal has transferred bail management to the Secretary of State, the Home Office decision maker will need to assess whether a curfew is justified on the facts of the case. If it is, the decision maker must give the bailed person an opportunity to make representations about the provisional curfew before bail conditions are varied to include a curfew condition.

However, there will be some cases that, although falling into the above criteria, may not be suitable for an EM condition. Examples of this could include:

 

  • pregnant women and women who have recently given birth

  • the elderly

  • where there is strong evidence to suggest that an electronic monitoring condition would cause serious harm to the person’s health

  • people whose claim to have been tortured has been accepted by the Home Office or First-tier Tribunal – for these cases alternative arrangements would have to be made

This is not an exhaustive list: decision makers must consider the individual circumstances of each case.

In Foreign National Offender (FNO) cases, including Nexus,  where an FNO applies for immigration bail or the Home Office is considering whether to grant immigration bail, the decision maker must consider if the FNO is a suitable candidate for electronic monitoring as part of their conditions of bail in the event that bail is granted.  Criminal Casework decision makers must always request both an electronic monitoring condition and a curfew condition if the FNO has committed certain offence

 

Such other immigration  bail condition as seen fit

Under paragraph 2(1)(f) of Schedule 10, a person may be subject to ‘such other conditions as the person granting the immigration bail thinks fit’.

Any such condition must be reasonable and it must be necessary to meet the purpose of the grant of the immigration bail. For example, decision makers may require a person granted immigration bail to notify the Home Office of a change of circumstances, or require them to surrender their passport if there is reason to believe that the person might deface or destroy the document to obstruct return to the country of origin or country from which the person arrived.

Another example is the use of curfews. These may be used to mitigate risk to the public if the person being granted bail poses such a risk. The length of the curfew and time of day to which it applies must be determined on the facts of the individual case and must be proportionate.

 

 

CURFEWS: IMMIGRATION BAIL CONDITION

Criminal cases and curfews:

In Criminal Casework cases, Home Office decision makers must always request a curfew condition (together with an electronic monitoring condition where radio-frequency tags are used) if a foreign national offender (FNO) has committed one of the following offences:

  • Homicide: murder or attempted murder , manslaughter

  • Sexual offences: any sex offence, including rape or attempted rape

  • Offences against the person: violent crime (including grievous bodily harm, malicious wounding and actual bodily harm)

  • Other serious crime: terrorist offences,  conspiracy (defraud, murder, kidnap),  kidnapping, including attempted kidnapping, armed robbery , arson with intent to endanger life,  any offence where the victim is a child

Additionally, it may also be appropriate to request a curfew condition in cases where the offence is not on the list above if, on the facts of the case, the decision maker considers that the FNO poses a high risk of harm, reoffending or absconding. In such cases, the decision maker must also consider whether the individual meets the criteria for exceptional circumstances to receive Secretary of State support if they do not have accommodation.

In every request, decision makers must clearly identify and fully describe the risk of harm and/or risk re-offending or absconding posed by the FNO. The decision maker’s consideration process must demonstrate why a curfew condition is necessary in the particular circumstances of the case including:

 

  • the intended aim of the curfew

  • risks of not applying the curfew

  • what the curfew can achieve that cannot be realised by other immigration bail conditions

  • proposed timing and length of curfew, and how these are linked to achieving the intended aim

In cases identified as suitable for a curfew condition, the decision maker must, in the bail summary (BAIL 505) or referral for Secretary of State bail (BAIL 407) do the following:

 

  • request an EM immigration bail condition

  • state clearly the curfew period or periods sought

  • set out the reasons for requesting the curfew, and the requested length and timing (its aim, risks if curfew is not imposed)

It will then be the decision of the First-tier Tribunal or Strategic Director, as appropriate, to determine if the requested curfew condition is proportionate and justifiable. If it is concluded that the requested curfew condition is not proportionate or justifiable in the circumstances of the case, the request will be refused.

The decision maker must give the person to be granted bail an opportunity to make representations about a provisional curfew before the curfew condition is put in place.

Non-foreign national offenders  and curfews:

It is not usual practice to seek a curfew condition in a non-foreign national offender  case. However, there may be occasions where the individual is considered to be of such risk of absconding and to pose such risk of harm that a curfew condition would be necessary and proportionate. It is also possible for the First-tier Tribunal to impose a curfew condition on its own initiative (that is, where this has not been requested by the Home Office).

Review of curfews:

 

It is essential that all decision makers ensure that there is regular review of curfew conditions.  All decision makers must review the curfew condition in any case allocated to them:

 

  • on a quarterly basis

  • when they receive any representations on the matter, including requests to vary the condition, from the individual or a person acting on their behalf

  • whenever information on a breach of the condition is received

Decision makers must use the relevant review pro forma to carry out reviews and must consider:

 

  • the continued necessity of the curfew – whether a curfew is still necessary or if the circumstances changed sufficiently that a curfew no longer serves its intended purpose

  • the proportionality of the curfew – whether the current curfew periods are still appropriate both in terms of timing and length, whether there is a basis on which to alter the curfew, for example if family circumstances have changed significantly

  • any challenge to the curfew – whether there has been a challenge to the curfew from the individual or legal representatives, whether an argument has been made and how strong this is

The purpose of the review is to ensure that the individual remains suitable for a curfew condition and any curfew continues to be necessary and proportionate in light of the facts at the date the review is undertaken.

If a review is conducted as a result of representations by, or on behalf of, an individual, the decision maker must provide a comprehensive response to the representations within 20 working days of the date on which the representations were received. There is no requirement to share the outcome of the other curfew reviews (that is, any carried out without representations by or on behalf of the individual). However, the outcome of curfew reviews may, as required, be shared with the individual at a future date as part of any response to further challenge or litigation.

 

FINANCIAL CONDITIONS: IMMIGRATION BAIL CONDITION

 

A financial condition may be attached to a grant of immigration bail. A financial condition is a condition that requires the person granted bail, or another named person (Financial Condition Supporter), to pay a sum of money (payment liability) if the person granted bail fails to comply with one or more of the other condition or conditions attached to the grant of immigration bail.

 

A financial condition cannot be imposed in isolation. It may be imposed only if it is thought to be an appropriate means of ensuring that the bailed person complies with at least one of the other conditions of immigration bail. For example, a financial condition of £500 for failing to comply with a reporting condition plus a sum of £500 for failing to comply with a condition relating to work.

 

The decision maker  must specify the following when imposing a financial condition:

 

  • the sum of money required to be paid (payment liability)

  • when the sum of money is to be paid

  • the form and manner in which it is to be paid

The use of a financial condition to secure compliance with other conditions of immigration bail is flexible. It may be a single sum imposed against one or more individual condition so that the specified sum of money becomes payable if that particular condition is breached, or it may be different sums imposed against different conditions.

A  decision maker  must view the sum of money to be paid as part of a financial condition in relation to the means of the person to be bailed or the Financial Condition Supporter. The decision maker  must set payment liability at a level that will act as a substantial incentive to the person to comply with the relevant other condition or conditions of immigration bail.

The decision maker  must assess each case on its own merits.  They should not normally apply a financial condition in a sum less than £500 to a bail condition. This is because, if this went to debt recovery, the recovery itself would cost more money than the actual debt.

The Financial Condition Supporter:

During a foreign national offender’s induction into immigration detention, a person acting on behalf of the Secretary of State must give them form BAIL 403 and ask for information about possible Financial Condition Supporters in the event of bail being granted.

A Financial Condition Supporter must satisfy all of the following:

 

  • be aged over 18 and settled in the UK (a person on immigration bail or with limited leave will rarely be acceptable as that person’s own stay may be limited/curtailed)

  • have a personal connection with the person, or be acting on behalf of a reputable organisation which has an interest in the person’s welfare

  • have enough money or disposable assets (clear of existing liabilities) to be able to pay the sum due if the person breaches a relevant immigration bail condition

  • be a homeowner or at least well-established in the place of residence

  • be free of any unspent criminal convictions (see Rehabilitation of Offenders Act guidance) – but see below  on unspent convictions

  • not to have come to adverse notice in connection with other immigration matters, including, in particular, previous immigration bail cases

A Financial Condition Supporter with an unspent conviction may still be suitable – the gravity with which a particular offence is viewed, and the consequences for the suitability of the Financial Condition Supporter, will be a matter for the discretion of the Secretary of State

Investigating the Financial Condition Supporter:

 

The financial and general standing of all prospective Financial Condition Supporters should be investigated as fully as possible.

The decision maker must give them a BAIL 306 notice setting out what is required when standing as a Financial Condition Supporter. As such, they will be asked to  produce evidence of their identity and financial position.  Home Office  policy guidance states that care should be taken over accepting bank books, statements of account and other similar evidence at face value, as it may be that sums of money have been deposited temporarily to create a false picture of the holder’s means. A record of deposits over a period (minimum of 3 months) is a useful indication of financial status.

All the usual immigration checks must be undertaken by the decision maker.

Immigration Intelligence may be consulted in appropriate cases (for example, where it is suspected that a Financial Condition Supporter may previously have been involved in facilitation or racketeering activities).

Where the Secretary of State is granting immigration bail, a Financial Condition Supporter will need to sign a BAIL 301 notice setting out the other condition or conditions of immigration bail to which the financial condition is attached.

Where the Tribunal is granting immigration bail, the Home Office decision maker must record information on the Financial Condition Supporter checks done and their outcome on the bail summary BAIL 505, including where no opportunity to conduct checks has been given

Financial condition: recovery

 

A payment liability under a financial condition is to be paid to the Secretary of State if either of the following applies, the:

 

  • Secretary of State granted the immigration bail

  • First-tier Tribunal granted the immigration bail but has directed that the power to vary the person’s bail conditions is to be exercisable by the Secretary of State

In all other cases, the payment liability is to be paid to the Tribunal.

The person liable for payment must be given the opportunity to make representations regarding the alleged breach.

TRAVEL EXPENSES AND  BAIL CONDITIONS

If there are exceptional circumstances for doing so, the Secretary of State may make a payment to a person on immigration bail to cover the person’s cost of travel to comply with a bail condition. An example of exceptional circumstances that may justify exercising the power to pay travel expenses is where the individual is subject to a reporting condition but the Secretary of State is unwilling to vary that condition to move it to a closer location to where the person is living and they are unable to afford the additional expense.

 

ASYLUM CLAIMAINTS AND BAIL

 

An illegal entrant (including an overstayer and someone determined to have entered using deception) who is discovered may claim asylum before a decision is taken to serve a liability to removal notice (for example a RED.0001). Such a person cannot be removed before their asylum claim is decided or decided and certified. For this reason, the person must be issued with form ILL EN 101 setting out their immigration status and their liability to detention instead of a liability to removal notice.

For Border Force cases, officers must use the IS81 instead of an ILL EN 101. Border Force officers must follow the clandestine guidance in immigration guidance for Border Force.

The person should be issued with a notification of grant or variation of bail form (BAIL 201) with at least one condition set unless detention is appropriate and considered necessary.

An individual who claims asylum in the United Kingdom while they have valid leave to enter or remain in another category cannot be placed on immigration bail. They may be subject to conditions under section 71 of the Nationality, Immigration and Asylum Act 2002 instead. Section 71 allows such a person to be made subject to such conditions as may be placed on a grant of immigration bail. Such persons should be served with a Notice of Restriction to a person who has made an incountry in-time claim for asylum (IS.248).

A person who breaches conditions under section 71 will become liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971 and may then be detained under that provision or granted bail under Schedule 10.

 

SECTION 3C LEAVE AND BAIL

A person   may have previously had leave which was cancelled by an immigration decision and that decision has been withdrawn and is being reconsidered.

A person may have leave extended by section 3C of the Immigration Act 1971 while an in-time application is being considered. At the point their application is decided, subject to any appeal rights or right to administrative review, the statutory extension of their leave will cease. They will therefore be a person who is liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971.

There are occasions where  the Home Office  withdraw the decision that brought about the end of the statutory extension of the person’s immigration leave. This may be due to representations being made or because the Home Office  agree to reconsider the decision in settling a judicial review. When  the Home Office  withdraw a decision, they  will usually have to remake it and where  they cannot immediately do that the affected person should normally be granted immigration bail.

A Home Office  decision maker  must use form BAIL 209 for granting bail in these circumstances.

When bail is granted in these circumstances, the person should normally be granted bail subject to the same conditions that applied to their previous grant of leave. For example, if the person could previously work, they should normally be granted bail with a condition that allows them to work. Where the previous condition of work specified that they could only work for a specified employer, the condition of bail should recreate that. Where the person could previously study and seeks to resume their studies, they should normally be granted bail with a condition that allows them to study.

In addition, in agreeing to settle litigation the Home Office  may agree to the person being put on certain conditions and where  that have done that decision makers  must reflect that in the conditions that they  set.

Where there was no previous restriction on where the person could live,  the decision  maker  should ensure that the person is permitted to rent.

Where leave is granted following reconsideration of the decision, bail will end.  Where leave is not granted the person remains someone who is liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971. Refusal of leave is a material change of circumstances and the decision maker must review the conditions of bail as the previous conditions are unlikely to continue to be appropriate. In particular, it will not usually be appropriate to allow a person to continue to have a condition that allows them to work in these circumstances.

 

VARYING IMMIGRATION BAIL CONDITIONS  AND TRANSFER OF BAIL  MANAGEMENT TO THE SECRETARY OF STATE

Varying conditions of bail:

 

The power to vary the condition or conditions of immigration bail is in paragraph 6 of Schedule 10. This provides for any of the conditions of immigration bail granted to a person to be amended or removed, or for one or more new conditions from immigration bail conditions: general to be imposed on the person.

The power to vary immigration bail conditions can be exercised by the Secretary of State in either of the following circumstances:

 

  • the grant of immigration bail was by the Secretary of State

  • the grant of immigration bail was by the First-tier Tribunal but the Tribunal has explicitly directed the power can be exercised by the Secretary of State

The power to vary immigration bail conditions can be exercised by the First-tier Tribunal if the immigration bail was granted by the Tribunal and it has not directed that the power to vary bail conditions can be exercised by the Secretary of State.

If the Secretary of State exercises the power to vary immigration bail conditions, the decision maker must issue a grant/variation of bail form (BAIL 201) setting out the terms of the variation. If there is a financial condition attached to one of more of the varied conditions, the decision maker must notify any Financial Condition Supporter and ask them to sign a new Financial Condition Supporter agreement (BAIL 301).

If the Secretary of State refuses a request to vary immigration bail conditions, the decision maker must issue a notification of refusal of request to vary bail conditions form (BAIL 406).

Where the Home Office applies to the First-tier Tribunal for a variation of bail conditions the:

 

  • decision maker completes the B3 (Variation of Bail Conditions and Transfer) and sends it to the Presenting Officer’s Unit (POU)

  • POU sends the completed B3 to the Tribunal for consideration

  • Tribunal sends the completed B3 to the bail party requesting a written response

Where the bailed person applies for a variation of bail conditions the:

 

  • applicant must complete form B2 (Tribunal’s Application for Variation form) and send it to the Tribunal

  • Tribunal notifies POU and requests a response from the Home Office

  • POU contacts decision maker to confirm whether the Home Office agrees or not – the decision maker has 7 days to respond

  • decision maker will then complete the Home Office response to the variation request (BAIL 304) and forward to the POU

  • PO will send the above notice to the Tribunal for consideration, together with any request to transfer management of bail to the Secretary of State.

Where both sides consent to the variation requested, the Tribunal will normally consider the request on the papers. The Tribunal will send the bail decision to the bail party and the decision to vary/to transfer bail to the POU. POU then inform the decision maker of the outcome.

If one side disagrees, the Tribunal will write to the bailed person and the POU, issuing an oral hearing notification. The POU will be notified of the listing and will inform the decision maker. The hearing follows the normal bail process. POU will notify the decision maker of the outcome.

If the First-tier Tribunal exercises, or refuses to exercise, the power to vary immigration bail conditions, the Tribunal must notify the person who is on immigration bail, in writing, and provide a copy of the notice to Secretary of State

Electronic monitoring condition: limitation on variation:

The First-tier Tribunal may not exercise the power to amend an electronic monitoring condition imposed on a person granted immigration bail from detention, or liable to be detained, under

 

  • paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)

  • section 36(1) of the UK Borders Act 2007 (detention pending automatic deportation)

Transfer of bail from the Tribunal to the Secretary of State:

In any case where the Tribunal has directed that the Secretary of State can exercise the power to vary bail, the power can no longer be exercised by the Tribunal and the Tribunal cannot consider an application to vary conditions thereafter. The decision whether to direct that the power to vary conditions of bail should be given to the Secretary of State rests with the First-tier Tribunal where the Tribunal grants immigration bail.

The Secretary of State cannot vary any condition of bail if the Tribunal has not so directed and so should consider asking the Tribunal to direct that bail be managed by the Secretary of State:

 

  • in the bail summary (BAIL 505)

  • at the bail hearing

  • where the Secretary of State contacts the Tribunal, using form B3, seeking to vary the condition or conditions of bail – for example a change to a reporting requirement

  • where the Secretary of State informs the Tribunal, using BAIL 303 (Breach of Bail Conditions Summary), that the individual has failed, is failing, or is likely to fail to comply with a condition of bail

If the Tribunal grants bail with a financial condition but agrees to transfer management of bail to the Secretary of State, the Home Office decision maker will need to inform any Financial Condition Supporter of the appropriate method of payment using form BAIL 305 (Payment information).

If the Tribunal has set a financial condition and has directed that bail can be varied by the Secretary of State, then it is for the Secretary of State to recover any payment liability if the bailed person breaches conditions to which the financial condition is attached.

If the Tribunal does not direct that the Secretary of State manage the case, then the Tribunal keeps complete control, including any decision to vary the conditions, dealing with any breach of conditions and recovering any payment liability under a financial condition.

 

BAIL ADDRESS ACCOMODATION AND SECRETARY OF STATE’S SUPPORT

There may be circumstances where a person is granted immigration bail subject to a residence condition requiring them to live at a specified address, and the person would not be able to support himself or herself at that address without the assistance of the Secretary of State.

Under paragraph 9 of Schedule 10, the Secretary of State may provide, or arrange for the provision of, facilities for the person’s accommodation at that address to enable the bail condition to be met, but only in exceptional circumstances.

The exceptional circumstances are:

SIAC cases –  people granted bail by the Special Immigration Appeals commission (SIAC), where exceptionally strict bail conditions, including a residence condition, are imposed to control the risk posed by the individual

Harm cases  – these are cases involving:

 

  • people – including Foreign National Offenders (FNOs) – who are granted bail and who are currently assessed by Her Majesty’s Prison and Probation Service (HMPPS) as being at a high or very high risk of causing serious harm to the public

  • FNOs at high risk of harmful reoffending against an individual – for example, offences of domestic burglary, robbery, sexual assaults and violence – who are assessed using the Offender Group Reconviction Scale (OGRS) with a minimum score of 70% where that person has nowhere suitable to live in accordance with their probation licence and/or multi-agency public protection arrangements (MAPPA), for a limited period, or otherwise at the discretion of the Home Secretary in the interest of public protection.

Accommodation support is provided for a limited period only, whilst the supported person makes arrangements either to leave the UK or to move to alternative accommodation. This period is expected to be 3-4 months, unless there are exceptional circumstances to justify continuing it, for example:

 

  • European Convention on Human Rights – article 3 cases

  • public protection issues

  • the person is compliant with the returns process and is likely to be returned within a reasonable timescale

Right to Rent 

 

People who have been granted immigration bail by the Tribunal subject to a residence condition and/or electronic monitoring condition are exempt from Right to Rent requirements. These people therefore have the option to secure accommodation at their own expense.

Provision of accommodation foreign national offenders

In the case of foreign national offenders (FNOs) still serving prison sentences, Criminal Casework decision makers will work with Offender Managers to prepare a release plan. This will consider, if the subject were to be granted immigration bail either on or after their custodial end date the following:

 

  • whether they will need Home Office supported accommodation

  • what the accommodation requirements might be

  • whether the individual can support themselves in the accommodation

  • whether they meet the exceptional circumstances criteria

Where a person applies for bail to the Tribunal and the Home Office considers that a residence condition is necessary were bail to be granted, the decision maker must note this in the bail summary , along with information as to the type of accommodation required and the reasons why this is necessary.

Foreign National  Offenders  granted bail whilst still under prison licence will need to have their proposed bail address approved by HMPPS (or devolved equivalents in Scotland and Northern Ireland). The agreed timeframe for HMPPS to consider an address is approximately 9 weeks. The police and other related partners may also have an interest in approving addresses for those who are not under licence.

Foreign  national offenders  receiving support because they meet the harm criteria will require Level 3 accommodation (Complex Bail Dispersal Accommodation). For vulnerable persons who are not foreign national offenders, the suitable accommodation level will vary according to the individual’s needs.

Where there may be a delay in securing appropriate accommodation for a person who is being provided with Home Office assistance, paragraph 3(8) of Schedule 10 provides that the commencement of a grant of bail may be specified to be conditional on arrangements specified in the grant of bail notice being in place to ensure that the person is able to comply with the bail conditions.

Where a person requests bail accommodation but the decision maker does not consider they fit the criteria above, the request must be rejected using the appropriate response in the Refusal to Provide Accommodation form (BAIL 203).

ADMINSTRATIVE PENALTIES :NON COMPLIANCE WITH IMMIGRATION BAIL

Breach of a bail condition: Secretary of State:

A person may breach one or more conditions of bail. This could, for example, be by working where this is prohibited or by failing to attend a reporting event at the time and date specified.

Where there is no financial condition and the Secretary of State intends to take action in response to the breach, by varying bail conditions, detaining, arresting for the criminal offence, the individual must be notified in writing of the alleged breach using form BAIL 204.

The BAIL 204 gives the individual the opportunity to make representations against whether a breach occurred or to provide a reasonable excuse for the breach. The individual has 10 working days to respond. Any representations a person makes about a breach of bail conditions will not affect the person’s case progression, including detention and removal – the entire breach process runs parallel to case progression.

The BAIL 204 notice must also be served if the breach is likely to result in the refusal of leave under the Immigration Rules or if the current bail conditions prohibit work but the individual submits evidence of employment as part of their application for leave.

If the individual does not provide any information in response to the BAIL 204 notice, or the decision maker concludes that breach action is necessary having considered the information provided, the decision maker may:

 

  • vary the conditions of the person’s immigration bail

  • arrange administrative arrest for breach of immigration bail, if appropriate 

Breach of a bail condition: Tribunal :

 

If a person on Tribunal bail breaches any condition of bail, the Home Office must notify the First-tier Tribunal. Where the Home Office decision maker receives notification of a breach they must complete and send both of the following:

 

  • Breach of Bail Conditions Summary (BAIL 303)

  • Variation of Bail Conditions and Transfer Request (B3)

to the Presenting Officers Unit (POU). The Home Office will also request transfer of bail to the Secretary of State unless the breach involves a financial condition.

The POU notifies the Tribunal by sending the BAIL 303 and B3, and, if applicable, the Tribunal will list the hearing and notify parties of the hearing date. The Presenting Officer (PO) will attend the hearing, where the bailee and any Financial Condition Supporter will be given the opportunity to respond to the breach allegation. The PO will notify the decision maker of the hearing outcome.

Recovery of payment under financial condition:

If a person fails to comply with a condition of bail to which a financial condition is attached, the relevant sum specified under the financial condition will become payable by the bailed person and/or the Financial Condition Supporter.

Any sum specified in the financial condition does not become payable unless the Secretary of State or First-tier Tribunal, as relevant, gives the person liable to make the payment an opportunity to provide reasons for not being required to pay the sum of money.

Where the person is granted bail by the Secretary of State, or where the Tribunal has directed that the Secretary of State has power to vary conditions of bail, the decision maker must serve a BAIL 208 on any person who is liable for the payment (either the bailed person or any Financial Condition Supporter) informing the recipients of the alleged breach of condition or conditions so that representations may be made in writing to the Home Office. The person liable to make the payment has 28 days to submit representations against payment and the Home Office must then respond within 10 working days of the date of receipt.

If the Home Office accepts the representations made against payment liability, the individual and the Financial Condition Supporter will be notified in writing that no further action is being taken at this time.

If the Home Office does not accept the representations made against payment liability or no representation is received, then financial recovery action will begin.

Initiating financial recovery action:

In any case where the decision maker decides to seek recovery of payment liability under a financial condition, the decision maker must

 

  • vary one or more conditions of the person’s continuing immigration bail

  • send any Financial Condition Supporter a new BAIL.301 to sign and return

  • issue a new BAIL 201 to the bailed person

This is necessary to ensure that the parties are aware that:

 

  • the bailed person remains subject to bail conditions even though a breach process is ongoing

  • any further breach or breaches may result in new penalties

To initiate financial recovery action, the decision maker must complete BAIL 307 and refer it to the Compliance Monitoring and Workflow Team (CMWT) within Criminal Casework. CMWT will then update the Civil Penalty Compliance Team (CPCT) spreadsheet.

In Criminal Casework cases, it will not be necessary for Criminal Casework decision makers to complete and refer the BAIL 307 as instructed above. CMWT will initiate the financial recovery action for Criminal Casework following a suspected breach.

Once CMWT updates the CPCT spreadsheet, CPCT will issue form BAIL 302 (Penalty Notice) to the individual and/or Financial Condition Supporter. The Financial Condition Supporter is given 10 working days to make the payment in accordance with the information provided in the BAIL 201 (notification of grant/variation of immigration bail), the BAIL 301 (Financial Condition Supporter agreement), or the BAIL 305 (payment information) forms. Where no payment is received within the appropriate timescale, then the payment liability may be recovered.

The payment recovery is then managed by Home Office Shared Services within a 60-day three-letter process. If payment is still not received, the debt is then transferred to the Home Office Debt Management Team where it is allocated to debt recovery agents via the Debt Market Integrator. Enforcement action may be taken if no payment is received.

In England and Wales, a payment liability under a financial condition is recoverable as if it were payable under an order of the county court in England and Wales.

In Scotland, a payment liability under a financial condition may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court or any sheriffdom in Scotland.

In Northern Ireland, a payment liability under a financial condition is recoverable as if it were payable under an order of a county court in Northern Ireland.

Administrative arrest   and search and arrest with warrant

The power of an immigration officer or a constable to arrest a person on immigration bail, without warrant, is in paragraph 10 of Schedule 10 to the Immigration Act 2010. This provides for an immigration officer or a constable to arrest a person on immigration bail if the immigration officer or constable has reasonable grounds for:

 

  • believing that the person is likely to fail to comply with a bail condition

  • suspecting that the person is failing, or has failed, to comply with a bail condition

If an appropriate judicial officer is satisfied that there are reasonable grounds for believing that a person liable to be arrested for breach of immigration bail is to be found on any premises, the judicial officer may issue a warrant. The warrant would be one authorising any immigration officer or constable to enter, by reasonable force if necessary, the premises named in the warrant in order to search for and arrest the person.

 

For this purpose, an appropriate judicial officer means, in relation to:

 

  • England and Wales, a justice of peace

  • Scotland, the sheriff or a justice of peace

  • Northern Ireland, a lay magistrate

Action following arrest:

 

A person arrested under paragraph 10 for breach of immigration bail must, as soon as is practicable after arrest, be brought before the relevant authority, that is:

 

  • Secretary of State, if the grant of immigration bail was by the Secretary of State or the Tribunal has directed that the power to vary the person’s immigration bail conditions is exercisable by the Secretary of State

  • First-tier Tribunal in all other cases

Until such time as the person is brought before the relevant authority, the person may be detained under the authority of the Secretary of State.

Where the arrested person had been granted bail by the First-tier Tribunal, the decision maker must also follow the process for notifying the Tribunal of the suspected breach.

Once the person is brought before the relevant authority, the relevant authority will decide whether the arrested person has broken or is likely to break any of the immigration bail conditions. If the answer is yes, the relevant authority must do one of the following:

 

  • direct the detention of the person under a provision mentioned in Eligibility for immigration bail under which the person is liable to be detained

  • grant the person immigration bail subject to the same or different conditions, which must comply with the requirements set out in Conditions of immigration bail

However, if the relevant authority decides that the arrested person has not broken, and is not likely to break any of the immigration bail conditions, the relevant authority must grant the person immigration bail subject to the same conditions that applied prior to the person’s arrest. A grant of bail in this situation must comply with the requirements set out in Conditions of immigration bail and it does not prevent a subsequent exercise of the power to vary the conditions of the immigration bail.

 

Non-compliance with immigration bail: criminal penalties

 

Under section 24(1)(h) of the Immigration Act 1971, a person on immigration bail, within the meaning of Schedule 10 to the Immigration Act 2016, who breaches a bail condition within the meaning of that Schedule, without reasonable excuse, commits a criminal offence. Such a person is liable to prosecution, and if convicted, may be subject to a fine and/or up to 6 months’ imprisonment.

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