Bail Guidance for Immigration Judges – Implemented on Monday, 11th July 2011

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
24 August 2011

The right to liberty is a fundamental right enjoyed by people in the United Kingdom, whether British citizens or subject to immigration control.

It is a right established in common law as well as protected by the European Convention on Human Rights. There are occasions where a person may be legitimately deprived of their liberty and one of them is when the immigration authorities are investigating whether a person who is not a citizen is entitled to enter or stay in the United Kingdom while a decision has been made to remove that person from the country.

A guidance has been published which sets out when and how an Immigration Judge should consider granting immigration bail. The guidance does not seek to be exhaustive and is able only to cover the most frequently occurring of situations. This guidance is not binding because Immigration Judges must apply the law and, if there is any divergence between the law and this guidance, the law will always be preferred. Nevertheless, Immigration Judges should have regard to this guidance when considering bail applications and they need to give reasons if it cannot be applied in a particular situation.

The primary function of an Immigration Judge at a bail hearing is to undertake a risk assessment to decide whether bail is appropriate. An Immigration Judge will consider all the evidence provided in order to decide whether maintaining detention is proportionate in the applicant’s circumstances. By contrast with criminal proceedings, there is no statutory presumption in favour of release in immigration detention cases. Nevertheless, bail should not be refused unless there is a good reason to do so, and it is for the Respondent ie the Secretary of State to show what those reasons are. Both parties have a duty to bring to the Judge’s attention any relevant evidence in their possession.

The Tribunal will always set some conditions when granting bail to ensure that the person concerned answers when required to do so. However, the stringency of the conditions set will vary according to the circumstances and the level of monitoring of the applicant that may be required. The first condition is to specify when bail will end. When there is no immigration appeal pending, an Immigration Judge should grant bail with a condition that the applicant surrenders to an Immigration Officer at a time and place to be specified either in the bail decision itself or in any subsequent variation. The Judge will usually specify the Immigration reporting centre nearest to where the applicant is to reside when released and will often specify that the applicant should answer to an Immigration Officer within seven days.

Once the application has answered to an Immigration Officer in accordance with that primary condition, the duration of any future grant of bail will be made by a Chief Immigration Officer rather than the Tribunal. To enable the Tribunal to promote the achievement of this primary condition, an Immigration Judge is likely to impose a secondary condition. Secondary conditions usually relate to the place of residence of the person to be released on bail and how the person released on bail should maintain contact with the Immigration authorities.

An Immigration Judge may require an applicant for bail to produce sureties. This should not be an automatic requirement and the Judge must have due regard to the fact that people recently arriving in the country may have nobody to whom they could expect to stand surety for them.

The sureties principle obligation is to ensure that the applicant attends when required to do so. If the applicant fails to attend the surety risks losing all or some of the recognisance pledge to ensure that duty. A surety has no other obligation in law under the bail conditions. A surety need not reside at the same address as the applicant, and the degree of supervision that a surety may seek to exercise to ensure that the applicant attends when required is a matter for the surety in light of the risks of the loss of the recognisance. A surety who has no immigration status, regular address, means of subsistence or knowledge of the applicant may well be unsuitable to act as such, as will a surety who has criminal convictions that are not spent. Details of sureties offered should be supplied in advance to the Respondent who may well make background checks.

When the bail application has been properly prepared in advance and the Judge has the relevant information required, a decision in most bail applications can usually be reached on a single occasion.