Immigration Bail
editImmigration bail is a form a bail provided to those in immigration detention. This is likely to be during the period where a decision as to immigration status or deportation is being made, though immigration bail may persist even where a person could not be lawfully detained.[1] The regime is distinct from and operates separately to bail for criminal offences - though previous convictions and the risk of offending are relevant considerations for those deciding whether to grant immigration bail.
Immigration bail applies where a person is liable to be detained by the Secretary of State, usually the Home Secretary, for an immigration offence. Immigration bail applies where a person is, or is liable to be, detained under the following provisions:
- Detention for examination or removal - Paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971
- Detention for deportation - Paragraph 2(1), (2) or (3) of Schedule 3 to the Immigration Act 1971
- Detention by Secretary of State for examination or removal - Section 62 of the Nationality, Immigration and Asylum Act 2002
- Detention prior to automatic deportation - Section 36(1) of the UK Borders Act 2007
Power to Grant Bail
editThe authority to grant bail is given to the Secretary of State, usually the Home Secretary, and in practice applied by officials acting on behalf of the minister such as immigration or Border Force officers.[1]
A person may apply to the state for bail, or it may be granted at the discretion of officials or the Home Secretary. The Immigration Tribunal may also grant bail.[1]
In deciding whether to grant bail, the relevant factors to be considered include: whether the person can realistically comply with a bail condition, any previous convictions, likelihood of further offences being committed on bail, likelihood of a person's presence causing a risk to public health or public order, whether detention is necessary for the protection of others, and whether the person has fialed to cooperate with the immigration process without a reasonable excuse.
The period of bail is indefinite, and will last from the time it is granted until another action is taken in relation to their immigration status. This will typically be a grant of leave to remain, being removed (deported) or one of the detention criteria above applies.[1] In cases of bail relating to paragraph 16(1), Schedule 2 Immigration Act 1971, the Immigration Tribunal are limited to granting bail on the 9th day or beyond that a person is present in the United Kingdom. This does not apply to paragraph 16(1A) cases.[1] The tribunal are also prohibitted from granting bail where a person is in detention and there are directions on behalf of the Home Secretary that the person is to be deported within 14 days or fewer.[1] Both these limits on the tribunal are established by paragraph 3, Schedule 10 Immigration Act 2016.[2]
A person may make repeated applications to the Immigration Tribunal for bail. However, paragraph 12(2), Schedule 10 Immigration Act 2016 requires that the tribunal must refuse to hear a repeated application unless it has been more than 28 days since the last application, or the applicant can demonstrate a material change in circumstances.[1][2]
Automatic Referral for Bail
editWhere a person is detained under paragraph 16(1), (1A) or (2), Schedule 2 Immigration Act 197 or s62 Nationality, Immigration and Asylum Act 2002 the government must refer them to the tribunal for a bail decision within four months of the start of detention, and each subsequent four-month period. Where a person submits their own application, the four-month period is calculated from the date of the most recent application. This does not apply for certain detention provisions, people detained for national security reasons, or where a person has given and not withdrawn written notice that they do not want to be referred.[1]
Bail Conditions
editImmigration bail is always conditional. Where a financial condition such a security or surety is set, another condition from the list below must also be included. The following list of conditions is provided by the Home Office as options for immigration bail:
- a condition requiring the person to appear before the Secretary of State or the First-tier Tribunal at a specified time and place
- a condition restricting the person’s work, occupation or studies in the UK
- a condition about the person’s residence
- a condition requiring the person to report to the Secretary of State or other person specified
- an electronic monitoring condition
- such other condition as the person granting the immigration bail sees fit (for example: curfew; requirement to notify the Home Office of change in circumstances)[1]
A condition can be applied where officials or the Immigration Tribunal are satisfied it can be complied with by the person subject to the condition from the start of the bail period.[1]