Significant changes to immigration detention powers and a new status called “immigration bail” came into force on 15 January 2018. The Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017 commence sections 61(1) and (2) and 66 of the Immigration Act 2016 and most of the immigration bail provisions set out in Schedule 10. As the explanatory note summarises:

Schedule 10 introduces a new framework for immigration bail, replacing a legal framework containing six different legal statuses (including immigration bail and temporary admission) with a single power of immigration bail.

This power to grant bail is conferred on both the Secretary of State and the First-tier Tribunal, in the former case by paragraph 1(1) and (2) of Schedule 10 and in the latter case by paragraph 1(3). The difference is that the Secretary of State may grant bail where a person is not detained but is liable to detention but there is no equivalent power for the tribunal.

New immigration bail guidance for tribunal judges was made public on 2 May 2018. We’ve taken a quick look at this in a separate post. Extensive new policy guidance on immigration bail was published in January, coinciding with the commencement of Schedule 10.

Immigration bail applications to the Secretary of State must be made on a new form. It promises that “the Home Office will respond within 10 working days”.

Applications to the tribunal are made on a new version of form B1. Compared with the old form B1, the new tribunal bail form incorporates some welcome simplification of language (e.g. “recognizance” is now referred to as “financial condition”). There is no longer a section asking for consent to electronic monitoring in Section 3 of the form, but Section 5 now contains a Yes/No consent to future management of bail being transferred to the Home Office.

The overhauled immigration detention framework

The practical effect of this new framework is a significant expansion of immigration detention powers. For starters, a tribunal is no longer permitted to grant bail in any circumstances for eight days after arrival or where removal is within 14 days: see Schedule 10(3).

Bail can now be imposed even on a person who cannot lawfully be detained, including where “the Secretary of State is considering whether to make a deportation order against the person under section 5(1) of the Immigration Act 1971”: see Schedule 10(1)(5).

Schedule 10 continues:

A grant of immigration bail to a person does not prevent the person’s subsequent detention…

So even if someone is granted bail, they can still be detained.

The Home Office may unilaterally vary bail conditions without judicial scrutiny, for example by increasing reporting frequency – Schedule 10(6).

And that is not all. Schedule 10(10)(1) provides:

An immigration officer or a constable may arrest without warrant a person on immigration bail if the immigration officer or constable—

(a) has reasonable grounds for believing that the person is likely to fail to comply with a bail condition, or

(b) has reasonable grounds for suspecting that the person is failing, or has failed, to comply with a bail condition.

In other words, someone can be arrested for possible future breaches of bail conditions. The only test is whether the immigration or police officer has “reasonable grounds for believing.”

Combined with the Home Office’s power, in other circumstances, to ignore a tribunal’s grant of bail, the jaded practitioner might be forgiven for wondering how much more pummelling the concept of “bail” can take.

One small mercy is that the requirement to impose electronic monitoring conditions is one of the provisions that have not yet been commenced, although that may be only a temporary respite.

The immigration bail provisions in the 2016 Act are covered in more detail in our recently updated training course on that legislation (see in particular Module 4, Unit 3). This short post is no substitute for a proper look at the pernicious effects of the overhaul; please do take a look.

This article was originally published on 15 January 2018 and was updated to include a reference to the new judicial guidance issued on 2 May 2018.