A broken system – immigration bail explained

The issue of long-term detention of immigrants in the UK should be taken seriously by all in the Labour movement. The overwhelming majority of those detained have not been convicted of a criminal act – most have simply been unable for a variety of reasons to maintain their status or simply lack specific evidence to show or establish their status.

The current immigration bail provisions epitomise the structural unfairness of the immigration system and the difficulty for those detained being able to secure an effective remedy. The current bail regime commenced on 15 January 2018.

Anyone who is alleged to have broken any aspect of their conditions is vulnerable to detention. Those not detained are now on immigration bail rather than the previous ‘temporary admission’.

Bail may be sought from the Home Office directly or the First-tier Tribunal.

Home Office bail

An application is made directly to the Home Office. Its document undertakes it “will respond within 10 working days”. This is breached extremely frequently.

The applicant must use a specified form and send it to a specified address. Bail is commonly subject to a series of conditions including sureties and a prohibition against working.

Tribunal bail

An application is made on a specified tribunal form. Sureties’ details are required. Hearings commonly follow no quicker than 12 days from application.

Bail can only be granted with Home Office consent where removal directions have been set and they require the person to leave the UK within 14 days of the date of the bail decision. It is not unheard of for a 14-day removal direction to arrive the day that the Home Office receives notice of a bail hearing.

If the tribunal refuses bail, an applicant cannot re-apply within 28 days, unless there has been a material change of circumstances.

The new January 2018 provisions include some blatant restrictions. Bail does not necessarily prevent a person’s detention. The Home Office can vary bail conditions without any tribunal scrutiny. An immigration officer or a constable may arrest without warrant a person on immigration bail.

Bail hearings

A tribunal bail hearing is often listed at short notice to take place at 10am at a venue often far from sureties’ homes. Sureties must cancel work. They can expect to be cross-examined about their integrity and means. They stand to lose sums pledged, in the event that an applicant breaks any bail condition. The applicant is rarely produced and appears by video link.

The day before the hearing, the Home Office produces a ‘bail summary’, which often contains severe factual inaccuracies. The presenting officer, not bound by the rules of conduct by which lawyers are bound, will repeat the inaccuracies at the hearing. Due process is clearly not followed.

Applicants who have the benefit of representation, despite the scarcity of legal aid, might be able to obtain obtained Home Office records through freedom of information requests, which contradict assertions in the bail summary.

In short, the current bail provisions are scarcely an effective remedy. They virtually overturn the legal principle in favour of bail. Both immigration officers and police can detain people without a warrant, and hearings are often presented with incorrect, unchallenged assertions. This system clearly isn’t working.

Martin Hoare is a solicitor based in Birmingham and a member of Labour and Unite.

This piece was commissioned by guest editor Diane Abbott.