Immigration Bail Applications

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The right to liberty is enshrined in Article 5 (1) of the European Convention on HumanRights (ECHR) which states that, “everyone has the right to liberty and security of person.” It further goes on to say that, “no one shall be deprived of his liberty”, that is, except in certain circumstances “in accordance with a procedure prescribed by law”. An example of this would be where a person may be detained for immigration purposes such as when an investigation is being made into whether a person is entitled to enter or remain in the United Kingdom or, where a decision is being made to remove a person from the country. It can therefore be said that the right to liberty is therefore not an absolute or unqualified right.

In order to safeguard the right to liberty and to prevent the disproportionate enforcement of detention, there are various options open to a person who may have been detained (such as temporary release, temporary admission and Chief Immigration Officer bail are available), however, UK law sets out an entitlement for a detainee to apply to the First – tier Tribunal (Immigration and Asylum Chamber) for immigration bail.

Those who are considering making an application for immigration bail to the First-tier Tribunal may wish to consider the criteria which will likely be considered by First-tier Tribunal Judge. Firstly, it is important to note that a Tribunal Judge will tend to grant bail where there is no sufficiently good reason to detain a person and where lesser measures can provide adequate alternative means of control. A Tribunal Judge may take into account the following when considering an application for bail:

  • The reason/reasons why the applicant was detained initially – these reasons for detention are usually laid out in the bail summary which should be available to the applicant and Tribunal judge prior to the hearing. The absence of a bail summary is not grounds to grant/refuse bail or to invite withdrawal of the application. The Tribunal Judge will consider the amount of weight to which should be placed on the reasons for the applicant being detained and assess whether the reasons provided are supported by sufficient evidence. The Tribunal Judge will consider whether the reasons for detention are proportionate to maintaining detention. The Tribunal Judge may also consider the protection of public interest and any history of criminality that the applicant may have.
  • The length of the detention to date and likely future duration of detention – it is important to note that there is no pre-determined limit in the immigration laws setting out how long the immigration authorities may detain a person pending the making or execution of the relevant immigration decision. It is worth noting that a Tribunal Judge may take into consideration any periods where a person has obstructed the authorities from carrying out reasonable inquiries.
  • The available alternatives to detention (including any circumstances relevant to the person that makes specific alternatives suitable or unsuitable) – a Tribunal Judge should grant bail wherever there is a less intrusive alternative to detention available which is sufficient to protect public interest. In deciding this, a Tribunal Judge will consider the personal circumstances of the applicant and his/her family and any incentives (or lack thereof) for maintaining contact with authorities.
  • The effect of detention upon the family of the applicant and his/her family – where an applicant has established that he/she has a family a Tribunal Judge must take into consideration whether maintaining detention infringes on the applicant’s right to respect for family and private life (under Article 8 ECHR) and must also consider the best interests of any children as recognised by the United Nations Convention on the Rights of the Child.
  • The likelihood of the person complying with conditions of bail – a Tribunal Judge is likely to give significant weight to an applicant’s previous history of complying with immigration control and maintaining contact with the immigration authorities. It may be more difficult for an applicant be released on bail if the applicant has previously broken the terms of bail or has a criminal record (and is likely to reoffend).

In processing a bail application, a Tribunal Judge may require the applicant to produce sureties which, in Scotland, comes in the form of a ‘cautioner’ (another person who offers a deposit prior to the applicant being released on bail). This is to reduce the risk of the breach of bail conditions although it should be duly noted that this is not an automatic requirement.

Where a bail application has been properly prepared and where the Tribunal Judge has all relevant information, a decision can usually be reached after a single hearing. If bail is granted, a Tribunal Judge will usually set various conditions in order to ensure that the person concerned answers to the authorities when required to do so. Conditions usually vary according to the circumstances of the applicant and normally include specification as to the end of the bail period. Other conditions can include specific requirements for reporting and even subjection to electronic monitoring.

If the applicant has been refused bail then a statement will be issued stating the reasons for the refusal. If the application for bail has been refused and, if the applicant has been refused bail in the last 28 days, another hearing is unlikely to be obtained unless the situation has changed significantly.

In arriving at a decision on an application for immigration bail a Tribunal Judge will inevitably have to form a judgement based on the individual circumstances of each application. Any person who is seeking to make such an application should seek tailored advice from a legal representative.

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