Judge Clements, President of the First-tier Tribunal (IAC), yesterday released comprehensive new guidance on immigration bail for judges. The updated guidance naturally takes into account the significant changes brought about by the Immigration Act 2016.

The blog has previously touched on some of the changes brought about by Schedule 10 of the Immigration Act 2016 which introduced the overarching concept of “immigration bail”, replacing temporary admissions, temporary release and bail under the Immigration Act 1971.

For members that need to brush up on this area, Colin has put together an excellent training module on the topic which covers, among other things, the power to grant bail and the conditions which can be imposed.

The new judicial guidance is altogether quite useful and much more concise than the old Presidential Guidance Note drafted back in 2012. It comes in at 19 pages where previously there were 31.

The new guidance says that a bail hearing will be listed “as soon as possible, normally within three working days”. That does seem a bit ambitious. Only time will tell how readily the tribunal’s already stretched resources can cope with the bout of new cases which the expedited bail system and the automatic referral provisions will trigger.

The guidance also requires (in accordance with the Tribunal Procedure Rules) that the Secretary of State produce a bail summary in advance of the hearing and a copy of any removal directions. It will be useful to see how strict judges are in implementing this part of the Procedure Rules. In my experience, the Home Office routinely fails to provide any such summaries or copies of removal directions with little or no consequences.

Very recently, I had a scenario where a Presenting Officer appeared at a bail hearing and advised that removal was to take place within 48 hours but that they did not have the exact time to hand. This caused huge chaos as we rushed to the Court of Session to stop an unspecified removal. The new guidance categorically states that if the Secretary of State cannot produce removal directions, he “will not be able to show that the person applying for bail is subject to directions for the removal within 14 days”. The upshot is that if the Secretary of State then refuses to consent to bail, her refusal will have no effect (see paragraph 119).

One thing which is confusing is that the guidance states at the outset that an immigration judge is not to decide whether continued detention is lawful (paragraph 6), i.e. whether it complies with the Hardial Singh principles. It then goes on to say at paragraph 30 that where detention is no longer justified, bail should be granted. Surely, a key consideration of whether a person’s detention is justified is whether their removal is likely to take place within a reasonable period? Whilst this is not specifically a matter listed in section 3(2) of Schedule 10, it can certainly come under the general category of “such other matters as…the First-tier Tribunal thinks relevant”.

A very welcome addition to the guidance is that a judge should not automatically impose a residence condition i.e. that the person should be required to live at a certain address. The basic premise behind this reasoning is that any bail condition should be proportionate and should only restrict the freedom of a person if it is absolutely necessary (paragraph 57).

Another interesting addition is the presumption that landlords will give permission for an applicant to live in a property unless the Secretary of State can provide any evidence to the contrary (paragraph 61).

Judges are also reminded at, paragraph 94, that they should not encourage withdrawal of bail applications as an alternative to refusing bail. Any proposed withdrawal will require judicial oversight and adequate reasons: TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 295 (IAC).

In cases where the Secretary of State refers a case to the tribunal for a bail hearing, the guidance notes that “special regard” would need to be given to the length of the detention given that “it is generally accepted that detention for three months would be considered a substantial period of time” (paragraph 101).

Whilst the guidance helpfully makes reference to the new simplified Form B1, the change of language (e.g. “recognizance” to “financial condition”) does not appear to be reflected in the Tribunal Procedure Rules which confusingly still use the old language.

The new guidance appears to operate in quite a fair and reasonable manner. In certain circumstances, applicants are given the benefit of the doubt and are likely to only suffer minimal interference. Thankfully, the concerns that practitioners had when the Immigration Act 2016 was introduced, that tribunals will now hardly ever grant bail, do not appear to have filtered through. Let’s wait and see for now.