People in immigration detention can make an application for Secretary of State bail directly to the Home Office. The Home Office has the same powers as the immigration tribunal to grant bail and manage its conditions.

Is it worth applying?

An application to the Secretary of State for immigration bail can be a useful tactical step. However, this means applying for release to the same authority that has made the decision to detain in the first place. Granting bail could effectively be an admission that the decision to detain was wrongly made.

There are some circumstances where the Home Office might grant bail, such as where more information has come to light or there is a change of circumstances, but generally it is unlikely.

Applying for Secretary of State bail can be useful for getting a response from the Home Office, setting out its reasons for detaining someone. In First-tier Tribunal bail applications, bail summaries are often disclosed by the Home Office right at the last minute and can contain a few nasty surprises. As such, some advance warning of the case against your client is helpful, and can save the cost and inconvenience of withdrawing at the last minute. It is also useful to see whether the reasons given for detention change over time.

Procedure

The Home Office now requires all Secretary of State bail applications to be made using the BAIL401 form – any other format will be rejected. The form can be found online, or can be obtained by the detainee from the welfare office in the detention centre.

The BAIL401 form follows more or less the same structure as the B1 form for First-tier Tribunal bail. Section 1 asks for basic details such as nationality and contact details. A release address is required. If the detainee does not have a release address, then a request for accommodation under Schedule 10 of the Immigration Act 2016 can be made.

Section 2 of the form deals with bail conditions, financial conditions and personal liability. The applicant can assure the Secretary of State that they will comply with their bail conditions and fortify this with a financial condition, making the applicant ‘personally liable’ for non-compliance.

Financial guarantors, previously known as sureties, can be offered in Section 3. Financial guarantors can help strengthen the application but are not mandatory. If they are provided, then their full details (including their nationality, immigration status and passport number) are required. Evidence that the financial sum promised could realistically be paid by them will also be necessary.

The Secretary of State often refuses bail applications on the basis that insufficient financial guarantees from the individual and guarantors have been offered to mitigate the risk of e.g. absconding. However if this is the only reason for refusal then that can be helpful later on in a tribunal bail application.

Bail grounds

Reasons for bail should focus on the facts of the case. There is little evidence that drafting lengthy grounds for bail makes an impact on an application directly to the Home Office.

As always with bail, the practical considerations are likely to be whether there are any barriers to the person’s removal/whether their removal is likely to take place soon, whether the person is likely to disappear if they are released and whether the person is likely to offend or harm the public.

The legal framework for the Home Office in granting an applicant bail can be found in Schedule 10(3)(2) of the Immigration Act 2016. It should be the starting point for any reasons for bail. In addition, the Home Office’s published policy on Immigration Bail, version 4.0, 5 April 2019 states at pages 34-35:

If the person you are considering for a grant of immigration bail is detained, you must take into account both the requirements set out under exercising the power to grant immigration bail and, in addition, the following:

– the length of any likely additional period necessary to eliminate barriers to removal

– any specific features of the case – such as those set out below – which indicate that detention is necessary

– the reliability and standing of any Financial Condition Supporters

– where appropriate, whether the person has a suitable settled address

– any other factors relevant to the decision to detain

– in Criminal Casework cases, any licence conditions

Indicators that a person is unlikely to comply with the conditions of immigration bail might include:

– any history of escaping, or attempting to escape, from legal custody

– previous breach or breaches of conditions of immigration bail – or its predecessors

– statement from the person or the person’s Financial Condition Supporter indicating an intention to breach bail

– the person’s immigration application sponsor, if any, refusing to act as Financial Condition Supporter because the sponsor does not believe the person will comply, even if other Financial Condition Supporters are produced subsequently

– risk of offending or potential harm to the public, including on the basis of national security, terrorism, criminality

– previous failed removal attempt owing to the individual’s disruptive behaviour or failure to comply with the documentation process

The above lists are not exhaustive. You must assess each case on its individual merits, taking account of the person’s family, social and economic background, health (physical and mental) and immigration history. You may still be able to grant immigration bail to a person with an adverse background or history if they produce sufficient and satisfactory Financial Condition Supporters.

There is a duty on the Home Office to provide regular and up-to-date reasons for continuing detention. Non-compliance with this duty may render the detention itself unlawful. Monthly Progress Reports provide helpful insight into the Home Office’s view of the case and can even provide a backbone to the applicant’s reasons for bail.

Previous criminal history will also be examined. Any prior offences are taken to indicate the individual’s risk of harm to the public if released from immigration detention. If the person has a criminal record, it may be argued by the Home Office that there is a high likelihood of the person committing another offence on bail.

It is important to acknowledge any previous offences, and evidence of good behaviour rehabilitation will be relevant here as well. If there is an OASyS report or evidence from Probation of a low risk of reoffending or harm then obtain and emphasise that.

If there are welfare reasons why an individual is unsuitable for detention and should be released then it is very important that these are raised fully and are as strongly evidenced as possible. Submissions can be made in line with the Home Office’s Adults at risk in immigration detention policy. Evidence can range from a specialist medico-legal report to evidence from the client’s GP/social worker/therapist or even evidence from the detention centre medical records or a Rule 35 report.

It is strongly recommended that specific evidence is obtained and substantial caution is exercised before simply printing out a client’s full medical records and handing them to the Home Office: medical record subject access requests often include unhelpful information or entries and can be very inaccurate which could harm rather than help the client’s case.

Decision

The Home Office promises that a response will be received “within 10 working days”. If bail is granted, the detainee will receive a BAIL201 notice informing them of when the grant of bail begins and the conditions set. Bail conditions will be implemented if the decision-maker considers that the condition:

1. Enables them to maintain contact with the applicant;
2. Reduces the risk of absconding or non-compliance with bail conditions;
3. Minimises delay to them becoming aware of non-compliance.

Depending on the condition set, there may be a short delay in releasing the detainee due to practical reasons, such as preparing the electronic monitoring tag.

The applicant will be notified of any refusal of bail on the form BAIL402, which will provide written reasons for the refusal. As stated above, this is likely to be the outcome of the application and shouldn’t deter from making an application for tribunal bail. Unlike in tribunal bail applications, repeat applications can be made as often as the detainee likes – though without a change in circumstances, the refusal will likely be the same.

This is an edited extract from the Free Movement online training course on immigration bail, written by Jennifer Blair and Larry Lock. View the full course contents here.