A person may be detained under immigration powers if they are liable to removal or deportation. Home Office policy is to use detention as a last resort, yet 28,908 people were detained under immigration powers in 2016. In the same year 2,833 were released on bail. This article focuses on bail applications made to the First-tier Tribunal (Immigration & Asylum Chamber).
Once a bail application has been received by the Tribunal, it will schedule a hearing as soon as reasonably practicable. If an application has been refused by the First-tier Tribunal within the last 28 days, the application will be dismissed without a hearing unless there has been a material change in circumstances. If the application is opposed by the Home Office, it will send a bail summary on the day before the hearing, setting out the reasons for opposing bail.
The First-tier Tribunal will assess a number of factors when deciding whether or not to grant bail, and if so, what conditions to impose:
- Reasons for detention: are these proportionate to the need to maintain detention? Have alternatives to detention been considered?
- Length of detention: is this connected with the reasons for detention? How long is detention likely to last?
- Prospects of removal/deportation: are there removal directions or a deportation order in place? Does the applicant have a valid travel document? What steps have been take by the Home Office to effect removal/deportation? Is there a pending application, appeal or judicial review?
- Likelihood of complying with conditions of bail: what is the risk of absconding? What is the applicant’s history of compliance? What is their incentive to comply?
- Personal circumstances: Is the applicant unsuitable for detention due to vulnerabilities? Are any family members, particularly children, affected by maintaining detention?
- Criminality: does the applicant have any convictions? What is their risk of re-offending upon release?
A surety is someone who takes responsibility for ensuring that upon release, conditions of bail will be complied with, and agrees to forfeit a sum of money if they are not (a recognizance). This sum is not fixed sum but should be a realistic amount, proportionate to the person’s means, and significant enough to provide the surety and applicant with an incentive to comply with their obligations. There is no requirement to have a surety, but reliable sureties will strengthen an application for release. Sureties must attend the bail hearing and the following factors will be considered:
- The strength of their relationship with the applicant: will they be able to exert influence over the applicant?
- Their immigration status: are they a British Citizen or settled in the UK? If not, when is their leave valid until?
- Immigration and criminal record: do they have a positive immigration history? Do they have criminal convictions?
- Address: is this fixed? Does the applicant have permission to live there? If they will be living elsewhere, how far away is this?
- Financial circumstances: do they have a stable source of income? Do they have savings? Will they be able to forfeit the money if required to? Is the amount offered a significant enough incentive?
If the applicant is granted bail, their release from detention will be subject to certain conditions.
If removal is due to take place within 14 days, the person cannot be released without the consent of the Secretary of State.
The primary condition will be to report to an immigration officer at a certain date and time. Generally, secondary conditions will include a requirement to report to the immigration authorities at regular intervals and to reside at the address listed on the application form.
If the Tribunal considers it necessary, it may impose additional conditions, such as electronic monitoring and a curfew.
Contact our immigration barristers
For expert advice and assistance with a bail application, or representation at a bail hearing, contact our immigration barristers on 0203 617 9173 or via our enquiry form.