27 March 2019

What is an immigration bail? How do you get it?

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Bail is a legal procedure available to any person who has been detained by the Home Office once they have been in the UK for seven days.

There are two ways to get released on bail from immigration detention:

  • Secretary of State Bail (Home Office bail)
  • Bail from an immigration judge (First-tier Tribunal bail)

Home Office Bail

A detainee can apply for Home Office bail to the Home Office by completing a Form 401. Detainees should be provided with a copy of this form by staff at Immigration Removal Centres or by the Home Office if detained in a prison. Home Office bail is considered on the papers only by Home Office decision makers; there is no bail hearing before an immigration judge. If successful the Home Office will usually release the detainee with conditions, such as a requirement to live at a particular address and to report to the Home Office on a particular date.

First Tier Tribunal Bail

First-tier Tribunal bail requires an application to a First-tier Tribunal hearing centre for release. When a detainee makes an application for bail, they are brought to an immigration court (the First-tier Tribunal, Immigration & Asylum Chamber) where a First-tier Tribunal judge (also known as an immigration judge) makes a decision on whether detention should be maintained. The case should be presented by a legal representative and opposed by a Home Office Presenting Officer. If bail is refused, the detainee has the right to apply for bail again after 28 days unless their circumstances have changed, in which case they can apply sooner.  If bail is granted there will normally be certain conditions attached.  For example, the individual and their financial supporters (formerly known as sureties) (if they have any) may have to offer an amount of money considered proportionate to their financial means, an amount that would be surrendered if the detainee absconded.

The immigration judge sometimes requires the detainee to live at a particular address and report to a reporting centre or a police station at regular intervals.

Financial guarantors/supporters (Sureties)

A financial supporter is someone who promises the court that he or she:

  • Can make sure you keep in contact with the authorities if you are released from detention.
  • Will pay money if you run away (abscond) or do not keep to conditions set by your release.

If I am detained unlawfully can I challenge the decision?

The High Court of Justice (usually known as the High Court) is one of the Senior Courts for England and Wales. Among other things, the High Court can look at the way decisions have been made by other courts and authorities (including the Home Office). If the Home Office has detained you without following the law correctly, you may be able to ask the High Court to decide if your detention is lawful or not. This is called an “application for Judicial Review”, or “JR”. Going to the High Court is complicated and expensive and normally you would need a solicitor and legal aid to help you do this.

I have applied for Home Office bail. Can I apply for Tribunal bail too?

Yes. Home Office bail is asking the Home Office (the detaining authority) to release you on bail. You can apply for bail at the same time to the First-tier Tribunal.

Do you need a financial guarantor/supporter to apply for bail?

No. You can still get bail if you do not have a financial supporter. However, a financial supporter will make a grant of bail more likely 

Who can be a financial guarantor/supporter?

Anyone who is legally in the UK. This includes people with student visas, people with refugee status, people with work permits, and European Union nationals Asylum seekers can stand as financial supporters. People who are unemployed can be financial supporters, but they must have enough money.

Can I put forward financial supporters if I apply for Home Office bail?

Yes. You can use financial supporters as part of an application for Home Office bail by entering their details on Home office form 401 in the same way as you would on the Tribunal B1 bail application form

Is a successful bail application the only way of getting out of detention?

Legal representatives can apply to the High Court for a judicial review of the government’s decision to detain if they think that the decision to detain or to maintain detention was unlawful. This can result in the person being released on bail.

What happens to detainees once they are released on bail?

If someone is granted permission to live in the UK (‘leave to remain’ or ‘leave to enter’) they will be released from detention and/or they will no longer be on bail.

Disclaimer:

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.

About the Author

Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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