Immigration Bail under the Schedule 10 Immigration Act 2016
with Ben Amunwa
Before 15 January 2018, a person who has been examined or detained under immigration powers could be released or provided with a temporary form of status by the Secretary of State under a range of different powers (i.e. temporary admission, temporary release, Tribunal bail, immigration officer bail and restriction orders).
From 15 January 2018, the immigration bail provisions contained in Schedule 10 of Immigration Act 2016 come into force. The effect of Schedule 10 of Immigration Act 2016 2016 is to consolidate these 6-different temporary legal powers into a single power of ‘immigration bail’, which allows for a person to reside in the UK on a temporary basis subject to one or more bail conditions.
Delivered by Ben Amunwa of The 36 Group, this 4-part course will provide an introduction to the new legal framework of immigration bail. Viewers will gain insight into practical issues that they are likely to encounter when advising clients, applying for bail or seeking to vary or challenge bail conditions.
Consideration will also be given to the applicability of key points of principle under previous case law to the new framework.
Please note, this course will assume some familiarity with the basics of bail under the pre-15 January 2018 law.
Written and recorded by Ben Amunwa, Barrister, The 36 Group
Hello and welcome to part two off this new Webinar Siris on immigration bail under the Immigration Act 2016 on Benham. Unwell barrister and trainer. So welcome back. If you've watched Part one already, which I would highly recommend to you just to recap in part one. I was taking you through the background to this new legal framework discussing the expansion off bail powers spell on detention powers under the New Immigration Act. On also looking at how this affects clients in a practical manner, their liability to be detained, all retained. Andi. Thirdly, we were also looking at the new bail form. So the forms that you use Data Day to apply for bail in this part, What we're gonna do is we're going to look at some of the submissions which you should be making on factors that you need to consider when applying for bail. We're also going to look at the state's power to impose conditions on bail. Finally, we are going to look in a bit more detail at what's known as the financial condition I e. The money that a person must pay if they breach their bail conditions. So let's kick off, then, with factors that you need to address in your submissions. This is practical. Tip number four. So under schedule 10 paragraph three. The statute requires the secretary of state or the tribunal as appropriate to consider certain factors before they grant bail. Just gonna run through those factors for you. Many of them will be familiar to you if you practiced in this area, but let's have a look at them. So the likelihood that a person will fail to comply with a bail condition fairly obvious one. Whether the pack person has been convicted often offense whether that's in or outside of the UK again fairly clear why that would be relevant. The likelihood of the person committing an offence well on immigration bail, the likelihood of a person's presence in the UK while on immigration bail, causing a danger to public health or a threat to public order. That's probably only going to apply in a limited range of cases, whether the person's detention that is necessary in that person's interests or for the protection off any other person. So a slightly bespoke a factor there and any other relevant factors. So if you're practicing in this area, you need to ensure that the structure of your grounds of appeal and all your oral or written submission to the tribunal cover those relevant factors but also don't signal other relevant factors. So, for instance, the statute is silent on, for instance, the presumption in favour off Liberty on the statute doesn't refer to the fact that it's relevant to the tribunal, for example, or for the sexual state to consider whether detention has become or is unlawful. It's important to note that there are some limitations on the tribunal's ability to grant bail, however. So in the first instance, where a person is liable to examination or removal at port, a tribunal cannot grant that person bail until the expiry of eight days after their arrival in the UK Further, the tribunal cannot grant bail to a person who is subject to removal directions on our dates. That is within 14 days off the date that the bail application is considered. So in other words, if by the time of the bail hearing in the tribunal, the secretary of State has set removal to occur within 14 days, then the the tribunal cannot grant bail unless the secretary of state consents to it, so that's an important provide. So it's going to be pretty rare that the secretary of state will, in fact, consent to the grant of bail in such circumstances. Further, another limitation on the tribunal's ability to grant bail is that if a person has made a repeat application for bail within a period of 28 days from their last application on where there has been no change of circumstances so no material difference in the in the case, then the tribunal is required to dismiss that application for bail and to do so without the hearing. So if you're thinking well, what's the material change of circumstances? I would suggest, for example, that in the case off an unlawful overstayers, if that person puts in an application for leave to remain, let's say under Article eight, um, after they have made a previous bail application, then that application for leave to remain may welcome constitutes a material change off circumstances. So moving on to practical tips five that is to be wear off catchall bail conditions. There have been changes made to the range off bail conditions that can be imposed on. All practitioners need to be alert to how the language of schedule Ted has changed the legal landscape. So going through those potential bail conditions, what Schedule 10 says is that immigration bail must be granted subject to one or mawr off the following conditions. Firstly, a requirement to appear before the secretary of state for the tribunal at a specified time and place. Secondly, of restriction as to the person's work, occupation or studies in the UK Thirdly, a residence requirement. A requirement to live it. A particular address, fourthly, a reporting requirement to report on a regular basis to a specified location. Five on Elektronik monitoring requirement i e. An electronic tag. And six such other conditions as appropriate. So that's what it set out in Schedule 10. Paragraph two off the 2016 Immigration Act. What does that mean in practice? Well, the inclusion off effectively a catch all all such other conditions as appropriate may sound rather innocuous. But in actual fact, what that appears to do is to provide the secretary of state with on the tribunal with a very wide discretion to impose additional requirements or restrictions on a person's bail. So for example, it's conceivable that the tribunal or the secretary of state could turn around and impose a curfew on somebody under that catchall provision. It is such other condition as they think fit. So this is particularly concerning given that the tribunal may well have said that they are directing the Home office to take responsibility for managing a person's bail conditions. The home office can then add in or vary the conditions as it sees fit to include new requirements such as a curfew. Even more concerning, obviously, is the fact that any breach off such conditions constitutes a criminal offence under the 1971 Immigration Act. Section 24 subsection one subsection H, and that's punishable by a level five fine or a up Teoh. Six months imprisonment on summary conviction. So we're looking at quite serious expansions off the impositions on person's liberty once they are under the new immigration bail powers. Moving on to practical tip. Six. This is about meeting the financial condition, so you may have noticed that in that list of bail conditions that the tribunal or the secretary secretary of states must impose one or more off. There's no mention off a financial condition that is dealt separately under paragraph five of Schedule 10 on This works in very much the same way as the old system off reconnaissance and sureties. So bail is, in practice, almost always imposed, subject to a financial condition unless a person has absolutely no means and no ties to the community. Andi. This financial condition effectively requires payment off a certain sum of money in the event that the person being granted bail fails to turn up, has required or goes missing or otherwise breaches their bail. Conditions on the payment of the financial condition may come from either the person who is granted bail and or from other persons who were supporting their financial conditions so effectively they work as guarantors. Payments must be made to the authority who was granted bail. So that could be either the secretary of state or the tribunal Andi, except in circumstances where the tribunal has transferred management of bail to the secretary of state. In that case, payment must be made to the secretary of state. Now there's no fixed mount amount of money that is required under the financial condition. It can vary from case to case As a broad yardstick, you might think that between 1000 to £2500 in some cases will be sufficient for a judge to be satisfied that financial condition is adequate in is met Andi. For them to grant bail, however, the amount could be significantly more or significantly less, depending on the level of risk posed by the candidate for bail in terms of their risk of going missing or their risk off committing offenses. Breaking the law whilst they are on bail in the UK So bear in mind that this is a very fat sensitive and of course the financial condition doesn't need to be paid straight away. That's often something that person's supporting. The financial condition may misunderstand, so it's not that they have to turn up to the tribunal on deposit money. The money is only payable upon breach off a person's bail conditions, so that covers Part two. We've gone through some suggested submissions structure fuel submissions when applying for bail. We've also looked at the operation off bail conditions and the somewhat concerning inclusion of a catchall, a condition which allows for the tribunal on the secretary of State to impose potentially new conditions, potentially something along the lines of a curfew or similar, for instance, a zone of exclusion might come within that power. We've also covered the financial condition in a bit more detail and stepping back from all this. It it's rather concerning that, for instance, the catchall provision for bail conditions may well be subject to challenge on judicial review grounds, Um, where that power is exercised in an arbitrary manner, where it's arguably exercised in an irrational manner. Those new requirements may well give rise to further litigation. So exactly how this system is going to play out in practice is somewhat uncertain on we may well be seeing some challenges ahead, perhaps based on human rights, perhaps based on you law, at least while it's still applies in the UK pre Brexit day. So I hope that was useful. Almost two Part three, in which we're going to be looking at the variation off bail. How that works on. We'll also look at the system off referring a case for bail applications. Andi, we're then going to move on to part four to round up some of these points and look at the case law. Look forward. See that? Thanks
Hello. Welcome to part three off this four part series on immigration bail under the Immigration Act 2016. I'm Veneman want I'm a barrister and a trainer. So in this part, we're going to be looking at the variation off bail conditions. So once a person is granted bail, how and when, and by whom can the conditions of bail be varied? Secondly, we're also going to be looking at the referral off cases for bail. This is a new procedure. Eso we'll take our time digesting its implications on then. Thirdly, we're going to look at the distinction between immigration bail on immigration status. So just to recap, then we've obviously been through in parts one and two. Quite number of tips on due. In part one. We were looking at the initially the background to this new legal framework coming in. We were looking at the fact that the power of state's power to grant bail in impose conditions upon certain categories of people has expanded significantly and how that impacts on your clients. We've also looked at the introduction off new bail forms. We've covered some typical factors that you will need to address or may need to address in your submissions when you're trying to get bail. We've looked at the fact that we are now facing a situation where clients could potentially face all manner off bail conditions, given the catchall provision in in schedule. 10. Andi, we've also looked at in some detail how clients need to meet the financial condition for bail. So we're onto tip number seven on that is the variation off bail conditions. Now the way that this works is that once immigration bail Iskan imposed on a person the authority who has imposed the bail so that could be the secretary of state. Or it could be the tribunal has the power to vary its conditions, and you'll remember that there's a list of conditions that one arm or of which must be imposed upon a person when either authority grants bail. Where the tribunal has granted bail on where it has directed that the secretary of state is responsible for managing Bale and its conditions in that circumstance. If a person wishes to apply to vary the conditions of bail although it's it was originally granted by the tribunal once has been transferred over to the Secretary of state. The application to very must go to the secretary of state. This is an important point. Onda. We covered it briefly when we were looking at the new forms for applying for bail in the tribunal's form. Formby one. You'll remember that in section five towards the bottom of the page, there is a There is a A section which asks the person filling it. How to indicate whether the applicant consents to the secretary of state managing bail If it is granted now, the importance off getting this right cannot be overstated, because if your client consents to the secretary of state managing bail, then effectively, you are restricting all. The client is restricting the range of legal avenues that are open to the client to challenge the variation off their bail conditions. Once the duty to manage bail is transferred to the secretary of state, the tribunal cannot get its jurisdiction back on. What that means is the client will need to negotiate with and make submissions to the Home office as opposed to an independent tribunal judge. My view is that the default position in these situations should be for clients to argue that the tribunal should retain jurisdiction because the tribunal is, but by far a speedier and more independent judge off these sorts of applications. That compared with arguing with the Home Office now that all stems from paragraph six in schedule 10. So if you have a look at paragraph six in there, you will see how this procedure operates now a quick note Schedule 10 also provides that the tribunal needs to provide tribunal procedure rules in order to facilitate the operation off Schedule 10 of the Immigration Act 2016. But the current version off the tribunal procedurals 2014 version does include reference to applications to vary bail conditions so a person can make applications to the tribunal at the moment under its current procedural rules that deal with the variation off conditions or which contest the imposition off new conditions under bail. It also covers, for instance, where a person or persons face the four fitting off the financial condition, or what used to be known as the record innocents. So the amount of money that the person or their supporters have pledged to give to the tribunal or the secretary of state if the person breaches their bail conditions. So if if there is an application, if a client wishes to make an application to contest the four fitting off the financial condition, that could also be dealt with within the tribunal provided that the tribunal retains jurisdiction over the management, off bail and any bail applications or bill related applications that don't require release from detention. So, for instance, if your client is not detained, but your client wishes to reduce the regularity over his his or her reporting schedule than an application can be made to the tribunal, provided the tribunal has jurisdiction on the tribunal can deal with that application on the papers. It doesn't need to call someone in before a hearing, and you'll see the reference to the tribunal procedurals in the course notes provided. So that covers variation of bail. Let's move on to the next tip, which is tip number eight on That is all about referral for bail. So cases where the secretary ist of state must refer a person to the tribunal to consider whether that person is a suitable candidate for bail and ought to be granted bail. So where has this come from? This duty to refer has come about in light off the increasing concern of the cost on the human implications off indefinite detention off migrants in the UK on because there's been concern across both sides of all sides of Parliament about this issue, I think what has happened here is that Schedule 10 has made some concession towards providing on increase in judicial oversight off persons detention under immigration powers. So the judicial oversight that this had this part of the schedule 10 has introduced paragraph 11 of Scheduled 10 is that that where a person has been detained for a period off four months without having had a bail application being considered or without having withdrawn a bail application following a referral under paragraph 11. Then there is a mandate ary duty on the Secretary of state. She must refer this person's case for consideration in the tribunal. We'll fail now. This sounds like a a step in the right direction, but it is rather limited because it only applies certain individuals. The category of persons to whom it applies includes persons who are liable to removal or examination at port, but it does not include persons who are liable to deportation i e water known as foreign criminals, all persons who the secretary of state is considering to deport under the deportation regime. And so there's no duty to refer those categories of persons to the tribunal to consider their bail. And in my experience on certainly from reading what others have to say about this matter. It is perhaps, concerning that one of the larger categories of persons who are held under immigration detention powers and who often go for some considerable periods of time without their liberty being considered under a bail application tend to be persons facing deportation. So quite how beneficial paragraph 11 off Schedule 10 is is perhaps open to debate and question. So that's tip number eight on to take number nine Now. This concerns the distinction between immigration bail and immigration status. There is a massive difference. A person who's being granted immigration bail under the Immigration Act 2016 is temporarily allowed to be physically present in the UK, but they have not actually well. They have not necessarily being admitted into the U. K in law, So what they have is not an immigration status but a temporary grant off immigration bail. So people who are on immigration bail can sometimes find themselves spending considerable periods of time in the UK but without lawful status. All they have got is bail. They have no bean granted any leave to enter. They have no Bean admitted under the E A regulations. If they are either an e a national or a relative off or connected to on E a national just thinking through the implications for European migrants and their relatives. Then there have Bean some changes made by the Immigration Act schedule by the Immigration Act 2016 scheduled 10 to the current E Regulations 2016. I'm just going to take you through some of those changes. They're quite interwoven, quite detailed. So bear with me. If it's a little bit dry, I'll try to make it as interesting as possible for you. So, first of all, for non e nationals who are seeking admission in the UK so they just arrived on that they're seeking lawful admission on a number of bases if they're seeking lawful admission. As persons who have a write off admission as a family member often e a national or if they're claiming a derivative right under the E A. Regulations right to reside or a write off permanent residence, or if they possess a residence card from 1/3 European member state. Those persons are treated as persons who is seeking leave to enter under the 1971 Immigration Act. Now if persons in any of those categories so family members, people seeking derivative rights off residents seeking to show permanent right to reside or they have a residence card from 1/3 e a member state those persons if they are placed under immigration bail under the Immigration Act 2016 Andi if they are liable to detention by virtue of the fact that they are either liable to deportation, the secretary states considering deporting them if they're liable to removal worth, they're liable to examination at port, then in those circumstances, when they are bailed, they are not lawfully admitted into the UK It's quite a lot to take in, I know and that's because the amendments made by the introduction of Schedule 10 Toothy E A Regulations 2016 are really quite detailed and I would strongly advise going through them with some care, but in essence, what you're looking for is for the person who is a bailed to bring themselves within one or other of those categories off having a relationship with an E, a national or a derivative, right to reside or having had a residence card. Already, Andi also that further requirement off the person being either liable to deportation or the social state considering deportation or liable to removal examination. So once those two main requirements are met, if the person is bailed, they haven't actually, Bean admitted. So they don't even come within the scope off the EU regulations for the purposes off. Establishing a permanent residents because they have not actually bean lawfully admitted. Yet now, when it comes to E. A Nationals, a situation is a little bit more straightforward but nonetheless has some complexity to its again. I'm just gonna take you through step by step. So for EA National to again are seeking admission into the UK upon arrival, where the secretary of state has reason to believe that the person may be liable to deportation for the public policy reasons in Regulation 23 off the 2016 year regulations or where the person is actually subject to a exclusion or deportation order or where there are reasonable grounds to suspect that the person is involved in the abuse off treaty rights by E. A. Sham marriage or marriage of convenience or relationship of convenience. Those sorts of things or, alternatively, where they are a family member often e a national. But they are not accompanied by or joining that family member in the UK or where the family member that they are seeking to join does not have a right to reside or, alternatively, where the person is seeking temporary admission for the purposes of participating in an appeal against exclusion or deportation in any off those circumstances in any of those categories. If the person is granted bail again, they're treated as though they are person seeking leave to enter or requiring leave to enter under the Immigration Act, 1971 in Schedule two. ANDI. As a consequence, they are not deemed to have Bean admitted to the UK even if they're on bail. So hopefully that helps to clarify the inter relationship between the new bail provisions on do the right self e A nationals when seeking admission to the UK, and how those rights may be affected. Just a quick point to note. I've referred to temporary admission earlier, but this now doesn't refer to the old form off temporary admission what it refers to its under the EEA regulations. If a person is the subject of a deportation order and is removed from the UK or voluntarily depart Andi if they make an application under Regulation 41 it is for what is called temporary admission back into the UK so that they can provide life evidence to the tribunal judge then that is known as temporary admission. It's a bit confusing because for those who've been practicing for some time, you'll immediately associate temporary admission with a form off effectively bail by the secretary of state. When it doesn't refer to that, it just refers to, under the EA regulations, Regulation 41 readmission to participate in an appeal following deportation and again such persons who are admitted under Regulation 41 they are not lawfully admitted into the U. K. All provided any kind of leave to enter. All that they've got is a temporary form of admission, and most likely they will also be on bail as well, so that then covers first of all, variation of bail conditions. And you'll recall that the distinction there are the important distinction there is between cases where the tribunal retains jurisdiction and therefore a person can apply to the tribunal either on paper or at a hearing. Two very conditions or or change or remove conditions on those cases where the tribunal has. Although the tribunal is granted bail, it has said that the secretary of state is going to manage bail on its behalf and therefore a person. Your client cannot actually apply to the tribunal but must make representations to the Home Office. Secondly, we talked about the procedure for referral for bail. So this this backstop provision that only applies to persons who are liable to examination at port or removal doesn't apply to persons liable to deportation. Andi. It provides that if a person hasn't had a bail application four months or hasn't withdrawn application upon referral within a form of period, then the secretary of state must refer those people to the tribunal for a consideration of bail. And then finally we touched on perhaps one of the more denser and detailed topics off this entire area. which is how the bail provisions affect the admission into the UK or lawful admission into the UK of certain categories off persons with potential claims under the regulations. Andi, my advice there is Make yourself a hot cup of tea, cocoa, coffee, whatever tickles your fancy. Make sure you've got a bit of time to spare. I'd highly recommend reading Schedule 10 in its entirety, but in particular those paragraphs relating to E. A Nationals and their admission because it's rather dense stuff. But hopefully I at least attempted to try and break it down for you. Make it a bit more accessible. I'll see you in the next installment part for the final part of this Siri's where we're going to be looking at some of the case law under the previous bail framework and considering the extent to which it may still be relevant, Thanks again
Hello and welcome to part four off this Webinar Siris on immigration bail under the Immigration Act 2016. I'm Ben, um, Anwar, a barrister on trainer. So in this final part off this four part series, what we're going to do is we're going to take a look at some of the case law. Now, hang on a second. You might be thinking, what case law? Because this is a completely new legal framework that's come into force on the 15th of January 2018. Well, sometimes the best guy to potential developments on the new legislation can be looking at the predecessor legislation and the cases decided under it. And I think that there are at least a few principles that we can derive usefully from the old law. Secondly, we're also going to have a brief look at the 70 page policy document that the Home Office published very recently regarding immigration bail on. Of course, we're going to be consolidating the learning from parts 123 on summarizing some of the key points. So, in fact, I'm going to start there by giving you a quick recap on what we've learned so far. So obviously We've talked about the background to the introduction off this brand new singular power off immigration bail, where it's come from and how it came into being. We've also talked about the expansion off bale powers Andi. By extension, the growing impact off increased detention powers on your clients on. We've looked at the brand new bail form. So the B one form on the B 401 form used for the tribunal on the secretary of state, respectfully well respectively. We've also looked at the factors which you should be addressing in your submissions for bail on the grounds of bail. We've noted that under the new powers, there is a power for catchall bail conditions for the sexually state or the tribunal to impose such other conditions as they think fit, which to me sounds pretty, pretty wide and will come back to that when we consider what the home office his new policy has to say about that. We have also looked into in a bit more detail the financial condition, so the money pledged by either the person being granted bail on door by persons supporting the person seeking bail on which needs to be paid in the event of a breach. We have considered how variation off bail conditions works under the new framework. We've also looked at this new idea off referral for bail. So the duty on the secretary of state to refer a person for bail if they haven't had a bail application for four months and they've being detained for that time. Andi, also in part 33 last tip there, was emphasizing the fact that immigration bail does not equate to immigration status. These are two entirely different things. Andi. If, for instance, and E. A national in certain categories seeks admission to the UK and is put on immigration bail, then they are not treated as having Bean admitted lawfully into the UK, which may have important knock on effects for that E a national their relatives claims to a right of residence under the regulations. So that brings us to the case law. Now I want to just highlight the fact that there's been some quite helpful illustrations of how the old bail framework works. So the pre 15th of January 2018 framework on this has largely come from the upper tribunal, but also from the Court of Appeal. We're going to start with a Court of Appeal case, and that is the case of R On the application off A Are in brackets Pakistan. The citations in the overview notes. It's a 2016 Court of appeal case. So essentially key principle here, which is discussed in paragraph 28 of that judgment, is this idea that if the tribunal grants person bail and if later on, that's a one month or two months down the line, the secretary of state then decides to change the conditions of bail, does so without justification and does so unnecessarily then In those circumstances, that variation of bail may well be amenable to judicial review. Now, this is important when we come to think about the new framework because essentially under the new framework in schedule 10 where bail is transferred to the secretary of state to manage on, the tribunal effectively takes a back seat or no seats because it has no jurisdiction over the bail conditions. In that situation, the secretary of state under the new powers can impose such conditions as she thinks fit, but clearly what the court of appeal was indicating under the old bail framework is that the secretary of state cannot do simply as she wishes. So this case on the principle, which it embodies or discusses at Paragraph 28 provides for a potential break on the power of the executive, which would otherwise be unchecked according to the plain Wording off schedule. 10 it's scheduled 10 paragraph two, I believe. So. It's worth bearing a. Are Pakistan in mind when you come to or if you come to challenge bail variations by the secretary of state, which have Bean done unnecessarily or without justification? So we then come to the case off crown on the application off Getty On This is a court of appeal case again from 2016 in a rose from the secretary of state's attempt to include as part off a residence requirement on Mr Getty, a curfew i e. A requirement, but stated that he was supposed to be indoors in the required residents between certain hours. Ultimately, the Court of Appeal rejected the lawfulness off this move. But the curious part of this case is that what the secretary of state was arguing was that it had imposed a curfew as part and parcel off the residence requirement i e. A residence requirement that needed to be facilitated by a curfew. In these case, the Court of Appeal turn around and found that four restrictions on a person's liberty off this nature. The clearest possible legislative authority is required. We can't just derive authority for a curfew from statutory authority for something else, like a residence requirement. However, the court did leave open the untested and somewhat on argued possibility that a curfew for authority for imposing a curfew could have been found from another part off the old bail provision. At that part being paragraph 22 sub paragraph two off scheduled to off the 1971 Immigration Act. So it didn't entirely slam the door shut in the face off the power off imposing a curfew. But what it did require again is clear authority for such a power. Whether or not the current position under the Immigration Act 2016 Schedule 10 provides for that unequivocal, clear legislative authority for a curfew is yet to be argued. But what the Home Office's own policy suggests is that the Home Office at least regards its authority under paragraph two sub paragraph one f off schedule 10 of 2016 as being sufficient for imposing a curfew in appropriate cases, and we'll come back to that in a moment. So then we move on to crown on the application of Meiji Era that is a upper tribunal case from 2017 Andi. It found that, first of all, to useful points in this case, number one is that where the tribunal grants bail. But there is some defect or error inthe e grant bail form. Let's say the wrong addresses put their or the wrong condition is listed. It is the responsibility off the secretary of state's representative, assuming that she is represented all the secretary of state after the bail hearing to draw the error to the tribunal's attention. So there is no express duty on the applicant for bail to do do so, although perhaps it's arguable that they ought to highlight the error. But the main burden falls on the secretary of state to highlight any such errors. The second important point from Madeira is that where a person is bailed on, they are on criminal license. So a foreign national offender who has been released from prison but detained in immigration detention and then subsequently is bailed. But within their licence period, then when they're bailed, the appropriate form of wording that a tribunal should use is that this person is granted bail without prejudice to the conditions off their license. So there were issues with tribunal judges granting bail by saying things such as Bailey's granted on the same terms as the license. The problem with that is that the tribunal didn't necessarily have the statutory authority to impose exactly the same conditions as the license. So without prejudice is a more neutral on more satisfactory form of words, according to the upper tribunal in Madeira. And I suspect that that approach is likely to hold good under the new framework as well. We then come to the final case on our whistle stop tour of recent case law on bail provisions on It's the Case off Lukas Ross Kowski and Secretary State, the Home Department. It's a 2017 case. I want to draw your attention to particular paragraphs off it paragraphs 43 51 52 and in those paragraphs what the Court of appeal concluded is that under this, the recent legal change following the Immigration Act 2014 which introduced this power off the secretary of state to refuse consent to a person being released after the tribunal has granted bail In circumstances where that person has removal directions set up for within 14 days off the bail hearing the effect of that power to refuse consent is not to invalidate the tribunal's grant of bail. Once the tribunal has granted bail, the person must be released subject to the secretary of State's power to object to refuse consent. But if, for example, the secretary of state fails to remove the person within the 14 day window or for reasons that might be different cancels the removal directions, then the tribunal's grant off bail stands. After that 14 day period, Andi, the person should be released if the person is not released a court in accordance with the tribunal's grant of bail that may well constitute unlawful detention depending on the circumstances. So this case looked at the 14 day period issue. The 14 day period issue remains a point that is relevant to the new legislation. It's effectively mirrored in the Immigration Act 2016 scheduled 10 provision and so the approach in Lucas results. Brickowski is likely again to be relevant to understanding off the new bail power right that covers everything I want to tell you about the new case law or about the recent case little and how it might affect the new legal framework. Moving on, I thought. I give you one more bonus tip, So bonus tip 11 is all about the Home Office is new bail policy. This is a long document. It's 70 pages. I can't go through it all but a few key points. First point. Although the statute says nothing about the presumption in favour of liberty, the Home Office's policy fortunately does. And it underlines the fact that immigration detention should be used sparingly by quote as a last resort. So use that part of the policy in your submissions when you're asking for your client to be granted bail in terms of theme, the discretion for the secretary state or the tribunal to impose such bail conditions as they see fit. This discretionary power is limited by the policy. The policy requires that such conditions must first of all, go to the purpose off, enabling the Home Office to maintain appropriate levels of contact with the person, they must reduce the risk of noncompliance, including absconding, and they must minimize the potential delay between the home office becoming aware of any non compliance. All in all, these conditions need to be reasonable and they need to be proportionate because breaching them can land your client in prison for up to six months on door with a fine off up to level five, which I believe is around £5000. So any conditions that's imposed needs to be proportionate to that potential criminal sanction. In addition, conditions just need to fulfill the purpose of immigration bail. So if tribunal judges or if the secretary of state impose a condition which is completely irrelevant to bail, then it's open to you to argue on behalf of your client that that condition in the circumstances that does not fulfill the objective of the statutory scheme as interpreted by the Home Office policy, So use it in your favor. There's quite a lot of material in the Home Office. Policy on curfews on this is because I think following the case of Getty, the Home Office is probably being quite keen to reintroduce or perhaps normalized the use of curfews as part off their immigration bail powers. But what's key in the policy is that it makes clear that you can't. You shouldn't use curfews in every case. It needs to be used appropriately. So if the aim of the curfew is to reduce re offending, there has to be some connection between the length and the timing of the curfew on Day three, the previous offending pattern. So it's not. It's got to be a logical connection between the power that on the condition that is being imposed on the objective that it is being sought to achieve. Also, where the home office seats toe very bail conditions, they ought to give the opportunity to your client to make representations as to why they should not vary them or why they should vary them, perhaps in the client's favor. There's further guidance in the policy. It's Page 25 I've adjusted all of this in the course, outline notes to do with financial conditions, supporters i e. Sureties people pledging money in the event that the person reaches their bail conditions and there's a list of characteristics quite a helpful, prompt in some ways for you to go through with your clients or with the financial conditions supporters to ensure that they are actually going to be perceived by the Home Office as appropriate financial condition supporters. In addition, one further point which the policy highlights in which I'd like to emphasize to you is that whilst Schedule 10 highlights factors which the tribunal and the secretary of state must consider when determining whether or not to grant bail there is this open ended such other reasons as are relevant provisions in there now. The Home Office policy suggests that the related policy, called adults at risk in detention may well be relevant to a relevant factor to consider as to whether or not to grant bail. So have a look at the adults that race risk policy. It's loosely based on water, known as the hard I'll Sing principles basic common role principles to constrain the executives discretionary power to indefinitely detain. They relate to the reasonableness of the length of detention, whether or not it has become apparent that a person cannot be realistically released within a reasonable period of time, whether or not sector states taking diligent Andi efficacious action to remove somebody on whether or not detention is under the right powers. So this whole parcel off considerations contained within the hard I'll sing principles which feed into the adults at risk policy. All of that may well be relevant on your bail application, though. Of course, tried to make it is practical ondas punchy as possible, given that you'll be making representations to the Home Office and or tribunal judges just to find what, Interestingly, there is no mention in the Home Office policy off the potential impact of the bail imposition on E. A. Nationals and all their relatives who are seeking admission to the UK I would have thought that that is one of the areas that is probably the more denser and detailed part of the new legislative framework and which would probably do could well do with some player guidance. I've tried to do my best in tip number nine to describe the difference between immigration bail on immigration status and, in particular, the situation of E. A Nationals and their relatives. But as he probably saw from Part three, this is pretty turgid stuff. So unfortunately, no guidance yet on that it would appear, or at least not in this policy document, right? That brings me to the end off tick number 11 which is the bonus tip. Looking at the Home Office policy. It's been a bumper sized part four, and I hope you don't mind me taking a little bit over the time that is usually allotted for these things, but I thought I'd give you asthma much guidance possible because thes are new provisions. Some of it's quite confusing, and you need to adapt to it fast in order to help your clients, who are undoubtedly going to be in a position of disadvantage in and vulnerability if they're being imposed upon by immigration bail powers. So that brings this part, this four part series to a close. I hope it's been useful. I value your feet back. Let me know what you think of the course. You can make comments. You can provide ratings you couldn't get into in touch with us as well. But in this four part series, results sleeping focused on schedule. 10. Read it. Reach Edgell. 10. It's detailed. It's important that you know it and you know where to find relevant provisions also read the guidance that goes along with it. It's long. That's quite a lot in there. Some of it is helpful again just to recap on the key areas of uncertainty and potential future development. We've looked at the fact that the class off people who are potential targets for being subject to immigration bail has considerably expanded. We've looked at the class of people who could be detained or re detained whilst they are on immigration bail again. That is an expansion of detention powers. We've looked at the new power to impose such other conditions as the tribunal or the secretary state thinks fit, which is particularly concerning given its sheer breath. We've also fought about the importance tactically off ensuring that if you're applying for bail in the immigration tribunal, you make representations for the tribunal to retain jurisdiction over the variation of bail conditions. If the tribunal transfers management of bail to the home office, then the tribunal loses jurisdiction and your client loses a potential statutory remedy to challenging bail conditions or varying bail conditions. So it's important, I would suggest is the default position to argue for the tribunal to retain jurisdiction to enable your clients to have more options to vary on. More options to seek flexibility under immigration bail. So again, I hope you found this useful by Ben. Um, Anwar raped the course. Getting touch on Bond. I'll see you again on the next one by
Called to the Bar in 2013, Ben enjoys a thriving practice in commercial, civil and public law. He also loves to train lawyers and non-lawyers in a variety of areas of law, putting to work his creative and presentation skills.
Ben runs a popular legal blog, called www.lawmostly.com, which aims to make the law accessible to a wider audience.
His advocacy is praised by Judges, opponents and clients. A member of 36 Civil, Ben is known for his exceptional client care and attention to detail in complex and urgent cases. Ben provides practical, cost-effective and punctual advice to a range of clients, including local authorities, professionals, businesses and individuals.
Before coming to the Bar, Ben spent over a decade in the charity sector supporting individuals in crisis. His experience of management and media enables him to perform calmly under pressure. Clients value his accessible manner and his ability to explain difficult areas of law.
- representing a senior doctor in a race discrimination and harassment claim against an NHS Trust;
- securing a favourable settlement at mediation for a private client in a dispute over the construction of a multi-million pound house;
- successfully defending a teacher who faced regulatory prosecution for alleged professional misconduct over a period of 3 years;
- co-counsel in R (Medical Justice and others) v Secretary of State for the Home Department (2016). As featured in The Guardian, the case challenged the government’s reliance on a restrictive definition of torture to justify immigration detention.
- successfully defending a local authority in a judicial review concerning duties to children in need - R (SC) v London Borough of Ealing  EWHC 2765 (Admin) and representing in Court of Appeal proceedings.