Common issues with immigration bail conditions

This article looks at some common practical issues which arise during the imposition of immigration bail conditions by the First-tier Tribunal, such as the requirement for the probation service to approve a bail address and issues around schedule 10 accommodation. This is of increasing importance given the current government has made no secret of its desire to increase detention and removal of foreign nationals, including, for example, as part of their new returns deal with France.

Background

The guidance “Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber)” sets out the principles to be followed by judges when deciding whether to grant immigration bail.

When granting immigration bail, the tribunal must impose at least one condition. This may be a residence condition, placing requirements on where a person should live, or a financial condition, requiring an amount to be paid if bail conditions are breached. Usually this is to be paid by a ‘financial condition supporter’, previously known as a ‘surety’. In practice, issues often arise with these conditions.

Requirement for bail address to be approved by probation service

If an individual in immigration detention is also subject to a criminal licence, there may be a requirement for the probation service to approve their residence address. The guidance indicates that this is a distinct issue to the question of immigration bail:

In the absence of any evidence to the contrary, judges will assume: (a) landlords will give permission for an applicant to live in a property, and (b) where a person is subject to a licence that a probation officer will approve the bail address if the immigration authorities have no specific concerns about that address other than the absence of express approval from a probation officer. – (paragraph 68)

Yet, there appears to be a pattern of bail being granted conditional upon an address being approved by the probation service. This undermines the guidance and should usually be resisted.

It may be necessary to argue for such a condition to be varied, particularly when there are delays in the probation service approving a residence address. Delays are unfortunately common.

It is likely that, when conditional bail is granted, a bail review will be directed. Representations can be made for the residence condition to be varied at the review stage. Bail reviews are likely to be determined on the papers. An oral hearing can be requested or directed, which may be necessary if the condition continues to be imposed and/or the probation service continues to delay approval of an address.

There may be grounds for sending a pre-action protocol letter to the probation service for their delay, given the gravity of someone’s liberty being dependent on them taking action. As immigration and asylum practitioners will know, sending a pre-action letter can often hurry a decision along. Although the pre-action process may be slower than requesting a variation at a bail review, a letter may be necessary if the bail condition is retained following review.

The applicant may ask for practical advice on what to do if they are granted immigration bail prior to probation approving their address for the purpose of their criminal licence. It is probably advisable for them to contact their probation officer as soon as possible upon being released. It might be sensible for them to physically go to their local probation office to explain the urgency with which they need their address to be approved.

Furthermore, it seems arguable that any additional periods of detention endured while the individual awaited probation approval of address could be unlawful, given that the imposition of this condition seemingly contravenes the guidance.

Schedule 10 accommodation

Earlier this year, there was concern about a decision of the Court of Appeal in Northern Ireland, Bounar v Secretary of State for the Home Department [2024] NICA 83 relating to the provision of accommodation under paragraph 9 of schedule 10 of the Immigration Act 2016. Sonia helpfully sets out the potential chaos it could cause in this article, which I will (attempt to) summarise.

As often occurs in practice, the applicant was granted immigration bail conditional upon the provision of accommodation under schedule 10. A residence condition required her to reside at the address of the accommodation she was subsequently given.

Paragraph 9 enables the Secretary of State to provide facilities for the accommodation of a person who is “on immigration bail subject to a condition requiring the person to reside at an address specified in the condition” (emphasis added).

In Bounar, this was interpreted strictly. It was held that as an address had not been “specified” in the bail condition, the applicant did not meet the requirements for accommodation.

This meant, in Sonia’s words “that the situation of the appellant was that she had been granted bail by the tribunal subject to the need to find an address, but the Home Secretary would not provide her with accommodation and an address under Schedule 10 because she did not have a grant of bail with a specific address.”

It appears that, despite this decision, the Home Office has not been persuaded to change their long-standing practice of granting schedule 10 accommodation in these circumstances. The Home Office guidance states:

An “address specified” for the purposes of paragraph 9 of Schedule 10 must be read to mean an address that is known at the time of the grant or variation of immigration bail, or an address that is yet to be specified (for example where someone does not have their own address and requires one to be provided to them under paragraph 9 of Schedule 10).

This is a pragmatic and purposive approach, which avoids circular applications that are a waste of all parties’ time and resources. It would be interesting to hear if this guidance is departed from, if you have experience of any such cases then please do get in touch with Free Movement.

Financial sureties

Financial condition supporters are not a necessary condition of immigration bail. Rather, immigration bail must be subject to at least one of a range of conditions, a financial condition being one possibility.

The guidance states that a financial condition “should be the exception and not the rule”, and:

A financial condition is not a pre-requisite of immigration bail. In each case, if a judge is satisfied that a person will comply with the conditions of bail, a financial condition will not be required. Where there is some doubt that a person will comply with the bail conditions, a financial condition might provide additional weight to permit the judge to be satisfied the person is more likely than not to comply with the other bail conditions. – paragraph 84

Yet, in practice, financial condition supporters often seem to be treated as necessary. Supporters are often questioned at length and scrutinised, despite providing documentary evidence of their means and relationship with the applicant. The guidance states that:

Because of the narrow issues to be considered, in most cases it will be unnecessary for examination-in-chief or cross-examination to be undertaken of the applicant or other persons present. Nor will there be a need for closing submissions.

This is not always reflected in practice. Practitioners who are new to immigration bail hearings should be prepared for both the applicant and any proposed financial condition supporters to be questioned, sometimes at length.

Final thoughts

The practical hurdles which arise in immigration bail applications can be unpredictable, as they often directly contradict the guidance which judges should follow. We should continue sharing our insights and experience with one another, to ensure that the applicants we represent have the best chance of being granted bail and their liberty is not unlawfully interfered with.