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
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