Home Office Under Fire For Covid-19 Immigration Detention And Bail Decisions

Disquiet over the detention of migrants in the UK was present well before the COVID-19 epidemic. In 2019, it was reported that over 3,000 hunger strikes had taken place in immigration detention centers since 2015. James Wilson, director of Detention Action told The Guardian :

“Look at the 2017 Panorama documentary onBrook House. Nothing has changed. We work with over 1,000 immigration center detainees a year and we still see high levels of desperation, suicidal feelings, attempts at suicide, self-harm, and mental health problems. We often hear of food and fluid refusal.”

“These statistics are indicative of a brutal and punitive system that [locks up] detainees, many of whom are very vulnerable, en masse and without adequate safeguards. The most vital safeguards that need to be introduced as a matter of urgency are to ensure that detention is only used as a last resort and that there is a 28-day limit because at the moment people are detained as a matter of course and without any time limit. They can be detained for months and sometimes years.”

The current Coronavirus pandemic has further highlighted the miserable conditions migrants often face when being detained. Peers and MPs from five different political parties have expressed serious concerns about the Home Office’s policy of detaining migrants who may be deported whilst the Coronavirus pandemic still rages.

There are reports that migrants, many of whom have committed no crimes and have not yet exhausted their legal options, are forced to share dining and bathroom facilities, despite the risk of catching Covid-19.

Glasgow Central MP Alison Thewliss commented:

“We already know that a number of people have tested positive for COVID-19 within the detention estate, and the fact that the Home Office is continuing to transfer detainees, and insisting on keeping people in situations where they can’t socially distance, shows a complete disregard for the health and wellbeing of those detained, and the public at large.”

One way to get out of a detention center is to apply for immigration bail.

Immigration bail – the facts

If you are being held in an immigration detention or removal facility or a prison, you have the legal right to apply for bail. Two factors will improve your chances of having bail granted:

1. Having a place to stay when you are released; and
2. Someone being your Financial Condition Supporter who will pay money if you break any of your bail conditions.

You can apply for bail in two ways:

1. Any time after you arrived in the UK, you can apply to the Secretary of State for the Home Department.
2. If you have been in the UK for eight or more days, you can apply to the First-tier Tribunal (Immigration and Asylum Chamber).

Special Immigration Appeals Commission appellants can apply directly to the Commission for bail.

Secretary of State bail

Secretary of State bail can be applied for as soon as you enter the country. However, if the Home Office has detained you, tactically, applying to them to grant you bail may not be advantageous. You may be refused and/or they can demand an excessive amount of money to secure bail. Remember, if the Home Office grants bail, it may be seen as an admission that detaining you was a mistake.

It is usually better to apply for bail from the Tribunal.

First-tier Tribunal (Immigration and Asylum Chamber) bail

If you apply for bail from the Tribunal, an independent immigration judge will decide on whether to approve your application. The judge does not decide whether or not your detention is legal; instead, they need to decide whether you can be trusted to be released on bail and whether holding you in detention is necessary and proportionate. However, if the evidence shows that holding you in detention cannot be justified, bail should be granted.

You will automatically be referred to the Tribunal for a bail hearing if:

• you have been held in detention for four months or more
• your detention is not related to national security interests
• you are not going to be deported
• it has been four months since you last applied to the Tribunal for bail

The Home Office will make a bail application based on the current information they have on file for you. You can tell the Home Office not to make this application and make the application yourself.

If your bail is granted, you will need to obey at least one condition, for example:

• reporting to an immigration officer on a regular basis
• attend a specific meeting
• where an electronic monitoring tag
• have to live at a certain address
• be restricted on the type of work or study you can do

Breaking these conditions can lead to you being sent back to a detention or removal center or to prison.

Immigration bail and Coronavirus

The Home Office has confirmed that “reporting as a condition of immigration bail is temporarily paused”. If you were granted immigration bail after 17 March 2020, you should have received a text message telling you not to attend any appointments.

To ensure you are alerted when the requirement to attend reporting meetings resumes, make sure you notify the relevant reporting center if your phone number changes.

In a recent development, the Home Office has received criticism for demanding that immigration judges provide written reasons for a rise in the number of detainees released from immigration centers during the Covid-19 pandemic. According to The Guardian :

“In a letter to the president of the Tribunal, Immigration and Asylum Chamber dated 29 April 2020, the Home Office’s head of appeals, James Stevens, wrote: “The numbers of those in detention have reduced very significantly since the start of this emergency.” He went on to say: “The Home Office is somewhat surprised at the level of grants of bail in recent weeks.”

Immigration judges are not required to provide written reasons for granting bail.

Numbers held in detention have fallen from 1,225 people on 1 January to 368 in May 2020. One reason for this is that detention should only be used for migrants who are to be imminently deported. Because of flights being grounded and many countries closing their borders, deportations have not been able to happen.

The First-Tier Tribunal (Immigration and Asylum Chamber) President issued a strong rebuke to the Home Office in response to its request, writing:

“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 wrote.

“The primary function of detention is accordingly to facilitate removal, and unless there are very powerful reasons to the contrary bail should be granted if there is no removal of the bail applicant within the reasonably foreseeable future.”

Related article: Changing Judges If immigration decisions taken looks biased in the tribunal

Final words

It is crucial to seek legal advice if you have been detained. You have a legal right to apply for bail. However, the Home Office can make compelling arguments against granting bail, and it can be difficult to refute these on your own. Experienced immigration solicitors can provide you with the advice and representation required for a successful bail application.