Immigration bail delays lawful

Any Immigration lawyer considering Immigration bail in 2018 may well be horrified at the chaos that now seems to reign following the introduction of the new Immigration Act bail system. Where previously, someone detained under the Immigration Rules could request Immigration bail accommodation if they had nowhere to stay on release from detention on Immigration bail, the Immigration Act 2016 makes provision for accommodation in schedule 10. The Home Office theoretically operates a policy of providing accommodation to any detainee that needs it, hand in hand with a duty to deal fairly and expeditiously with any application for accommodation. However, the new regime has no provision for an Immigration detainee to apply for Immigration bail accommodation.

In the UK, Immigration bail is available to anyone who has been detained by the UK Home Office on Immigration matters – for example because they have overstayed in the UK on the terms of their visa, are in the UK without a valid visa, or have breached other conditions of their visa. If detention is on Immigration grounds, then it does not matter where the individual is being held – whether an Immigration removal centre, a detention centre or prison – Immigration bail is available. An individual who is held on Immigration matters can either apply to the Home Secretary, or, once they have been in the UK for more than 8 days, to the First Tier Tribunal. Someone who has been in detention for more than 4 months may be automatically referred for a bail hearing. Bail is more likely to be granted to someone with somewhere to stay, and to someone who has a financial supporter able to make payments if in applicant does not comply with the conditions of his or her bail.

Introduced in January 2018, the new Immigration bail system is based on a single power to grant Immigration bail. The power to grant Immigration bail is conferred on the Secretary of State and also on the First Tier Tribunal, and Immigration bail can now be imposed on anyone who cannot be law, including in circumstances where the Secretary of State is considering a deportation order in respect of the individual. Someone can still be detained at a later date if they have been granted bail, and the Home Office has the power to vary bail conditions unilaterally. Most alarmingly, perhaps, for London Immigration appeal lawyers, someone granted Immigration bail can arrested without a warrant for breaches of bail conditions that they may commit in the future, where the police or Immigration officer has ‘reasonable grounds’. There is no provision for an Immigration detainee to apply for Immigration bail accommodation under the new Immigration bail system.

As reported by Free Movement recently, research by Bail for Immigration Detainees has highlighted the detrimental impact of the new system – specifically in this context that many Immigration detainees are detained for far longer than necessary because no accommodation is available.

Although considering provisions under the previous regime for Immigration bail, the case of R (Baraka) v Secretary of State for the Home Department [2018] EWHC 1549 (Admin), the decision illustrates the depressing situation regarding Immigration bail before the new regime made things even worse!

Mr Baraka applied for assistance with accommodation in April 2017. He had been in detention since March 2017, his nationality disputed with neither Sudan nor South Sudan prepared to take responsibility for him and provide him with travel documents. He had made an application for Asylum in the UK in 2013 but had been convicted of abduction and sexual assault in 2014 and sentenced to 4 years’ imprisonment. On licence until January 2020, his was served with a deportation order in December 2015. Following an appeal, and subsequently exhausting his rights to appeal in January 2017, he was detained on 29th March 2017. At the time of the relevant hearing, he had been in Immigration detention for nearly 15 months. He argued, through Counsel, that

Although the case did have an added complication that any accommodation had to be approved by the Probation Service, given the criminal conviction and the terms of his licence, it does not get over the fact that despite the relevant agencies having details of Mr Baraka’s request for accommodation, they were unable to identify suitable accommodation in over a year, leaving Mr Baraka in Immigration detention.

Despite this, the judge was unable to find that the Secretary of State had acted unreasonably or unlawfully or that the delay in providing accommodation would merit the granting of an order in favour of Mr Baraka.

As already mentioned, the Baraka case deals with the old Immigration bail system, under which Immigration detainees could request accommodation. The new Immigration bail system introduced in January 2018 does not include this provision – only a provision to provide accommodation to any Immigration detainee that needs it, and a duty to deal with this expeditiously and fairly. The reality is that Immigration bail can now be harder than ever before to secure.