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Home Office tries to lean on judges deciding immigration bail cases

Home Office tries to lean on judges deciding immigration bail cases

The Home Office tried to put pressure on judges to stop releasing migrants from immigration detention, it has emerged.

An official letter from the department to a top immigration judge said that the Home Office was “somewhat surprised” that judges had agreed to release so many people on immigration bail during the coronavirus crisis.

The astonishing attempt to interfere with the independence of the judiciary was rebuffed by First-tier Tribunal President Michael Clements, who replied “we decide bail applications in accordance with the law”.

The Immigration Law Practitioners’ Association said that the letter was “not appropriate”.

The Home Office has refused to adopt a policy of general release from immigration detention despite the health risks of keeping people at close quarters. But many individual detainees have been successfully applying for immigration bail on a case-by-case basis, arguing that with international flights grounded, they cannot be removed from the UK imminently and must therefore be released.

In the letter to President Clements, dated 29 April, a senior Home Office civil servant says that 708 people were left in immigration detention as of about a fortnight ago. This is much fewer than usual — at the start of the year there were over 1,500. The charity Bail for Immigration Detainees has reported a 95% success rate in bail applications since the start of lockdown.

The Home Office letter goes on to note the steps taken by detention centres to adapt to coronavirus and says that almost all those still locked up have committed a criminal offence. It also refers to the recent judgment in the Detention Action case, in which the High Court refused to order a general release on health and human rights grounds.

The letter then says:

In light of this judgment, and the reviews that have taken place, the Home Office is somewhat surprised at the level of grants of bail in recent weeks. 

It goes on to make the case that removal is still possible in some cases, and asks for immigration judges to “provide written reasons” for granting bail. This, as the letter acknowledges, is not required under immigration bail rules. Judges already give reasons for their decision at the bail hearing, which can be noted by the Home Office representative.

In a reply dated 1 May, President Clements makes clear that the attempt to lean on the judiciary to keep people locked up was unwelcome:

As [an] independent judiciary we decide bail applications in accordance with the law, which includes the guidance which has been issued. There has been no change in either the law or the guidance.

He adds that “judges will continue to deal with all bail applications with anxious scrutiny on the evidence put before them including the likelihood of their absconding if released, and the level of risk they pose to the public”. The request for written reasons is dismissed as “not necessary”.

The letters were copied to the Law Society and the Immigration Law Practitioners’ Association. ILPA Chair Adrian Berry told Free Movement:

Bail hearings, concerning questions of liberty, are decided on an individual basis by a judge who has considered the facts of each case. The government has the opportunity to defend its decision during the course of the hearing and it is not appropriate for it to use its position outside of the courtroom to seek to influence decisions. The separation of powers between the government and judiciary is a core constitutional principle. We welcome the response from President Clements who reiterated the importance of an independent judiciary.

The Home Office denied attempting to influence independent judicial decisions, saying that the letter “transparently explains our pandemic response including carefully reviewing cases”.

Judge for yourself: ILPA has now made both letters publicly available on its website.

CJ McKinney is Free Movement's editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering pitches. CJ is an adviser on legal and policy matters to the Migration Observatory at Oxford University, and keeps up with the wider legal world as a contributor to Legal Cheek. Twitter: @mckinneytweets.

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