Immigration Bill Committee

Written evidence submitted by Bail for Immigration Detainees (BID) (IB 41)

Bail for Immigration Detainees: Evidence to the Public Bill Committee on the Immigration Bill

1. Bail for Immigration Detainees is an independent charity established in 1999 to challenge immigration detention in the UK. We assist detained asylum seekers and migrants in removal centres and prisons to secure release from detention through the provision of free legal advice, information and representation.

2. While detention exists, BID aims to challenge long-term detention and to improve access to justice for immigration detainees. We seek an immediate to end the separation of families for immigration purposes and to the detention of vulnerable people.

3. BID believes that asylum seekers and migrants in the UK have a right to liberty and access to justice. They should not be subjected to immigration detention.

4. The Immigration Bill proposes a wide range of measures, covering illegal working, border security, and access to services. This evidence focuses primarily on changes to immigration bail and the provision of bail addresses.

5. BID is a member of the Immigration Law Practitioners’ Association (ILPA) and the Refugee Children’s Consortium (RCC). Each of those organisations has also produced briefings on this Bill, which cover other areas of concern. We would also draw attention to their evidence and proposed amendments.

Time limit on detention

6. During its debate on the Inquiry into the use of immigration detention in September 2015, the House of Commons unanimously agreed to support the report’s recommendations. Among these was a recommendation that a time limit for immigration detention of 28 days – other than in exceptional circumstances – be introduced.

7. BID welcomed the recommendation of the inquiry that a maximum period of detention of 28 days should be introduced via statute, and believes that the Immigration Bill should be amended to include such a provision. We remain wary that any time limit must not simply become the norm – detention has the potential to be harmful or unlawful from the very first day, and so the Home Office should operate in theory and in practice with a presumption against the use of detention. Any such time limit should be operated alongside a new and robust system for reviewing the decision to detain early in the period of detention, via some form of automatic court hearing and a statutory presumption that detention is to be used only exceptionally and for the shortest possible time.

8. BID’s policy paper Safeguards against arbitrary and prolonged detention compares the lack of time limit in immigration detention with other powers of detention.

TYPE OF DETENTION

MAXIMUM PERIOD

POWERS

Following arrest by the police

24 hours (extendable to 36 hours by police superintendent, to 96 hours by a magistrate)

Criminal

Immigration detention (parents with their minor children)

72 hours (extendable to 7 days with ministerial authority)

Immigration

Pre-charge (arrested under the Terrorism Act)

14 days (in stages)

Terrorism

Post-charge custody time limit (remand)

56 – 182 days

Criminal

Immigration detention (adults)

None

Immigration

9. During the full year 2014, 857 people leaving detention from an IRC had been detained longer than 6 months. This represented just 2.9% of all people leaving detention. 36.5% of people leaving detention had been detained for more than 28 days. Among people detained for 28 days or less, just 62.7% were removed from the UK, and 37.3% were released into the community – suggesting that in at least a third of cases, the decision to retain in the first place was unnecessary.

Changes to Immigration Bail.

10. BID recognises that existing laws and regulations around immigration detention, bail and support are complex, fragmented and in need of consolidation. Schedule 5 of the Bill seeks to do this.

11. It is the Home Office’s stated policy that immigration detention be used as a last resort and for the shortest possible time. As was observed by the joint inquiry into immigration detention, this policy is "not being adhered to, or having its desired effect." We are concerned that the explanatory notes for Schedule 5 – reflecting the intentions for the Bill, begin from the starting point that:

"Prior [to this schedule] there were a number of provisions under which a person who would otherwise have been held in immigration detention, could be released or have avoided being detained altogether." [emphasis added].

12. We believe that, in attempting to devise a consolidated framework, it is necessary to simultaneously addressed the use of immigration detention, alternatives and limits and restrictions.

13. The decision to end the use of temporary admission and temporary release and to replace them with the new framework for immigration bail is indicative of a negative attitude towards people’s right to liberty. The connotations of being ‘released on bail’ rather than ‘temporarily admitted’ are entirely negative; it appears that the Bill is seeking to normalise the detention of all foreign nationals with irregular immigration status or outstanding claims and appeals.

14. The Secretary of State’s power to detain a person for immigration purposes is limited by existing laws – provisions that this Bill does not seek to amend. A person may only be legally detained to allow investigation as to whether that person should be permitted to enter the UK, or for the purpose of removing the person from the UK – and then only for a "reasonable time".

15. We fail to see that an argument can be made for how a person who cannot be lawfully detained can be granted ‘immigration bail’. Put simply – if detention is not possible, then there is nothing for them to be bailed from. Any suggestion otherwise would appear to be a move to give people – including those seeking decisions on their immigration cases – a negative label with little basis.

16. The futility of this attempt at consolidating the framework around temporary admission and bail without fundamental reform is even more apparent given the Home Office’s continued misuse of immigration detention provisions as they currently exist. Over the 12 months to June 2015, 32,053 people had been detained under immigration powers for some period of time. Statistics on bail hearings are shown in the table below.

Immigration bail at the First-tier Tribunal (IAC) January – December 2013 [1]

% of total number of applications received

17. % of applications fully heard (i.e. not withdrawn)

Bail applications received

12, 373

Bail applications heard

12, 248

Grants of bail

2, 717

22.18

34.68

Refusals of bail

4, 973

40.60

63.47

Withdrawals

4, 538

37.05

18. In the year to 30 June 2014, 36% of people leaving detention were detained for seven days or less, and of these, 1% were bailed, compared with 60% who were removed. But, of those people leaving detention who had been detained for 12 months or more, 30% were bailed, 24% were granted temporary admission or release, and just 44% were removed. Longer-term detainees were still less likely to be removed at the end of their detention. Of the 5 detainees who left Immigration Removal Centres in 2013 after spending 48 months or more in detention, only 20% were removed from the UK.

19. The technical matters presented in the Bill regarding grants of bail, conditions and procedures appear to be needlessly confused, and we believe that there will need to be considerable clarifying amendments. Provisions that blur lines of accountability and responsibility between the First Tier Tribunal and the Secretary of State are unnecessary and unwelcome, and we would suggest that the Government ought to reconsider them.

Bail Addresses

20. BID submitted a response to the Government’s recent consultation, "Reforming support for failed asylum seekers and other illegal migrants". In that response, we draw particular attention to the proposed removal of section 4(1)c of the Immigration and Asylum Act 1999. We are disappointed that the drafting of this Bill has pre-empted the conclusions of that consultation.

21. Schedule 5, section 7 of this Bill empowers the Secretary of State to grant an address for the purpose of bail, while Schedule 6 amends the Immigration and Asylum Act 1999 to insert a new section 95A on providing support for failed asylum seekers who are unable to leave the UK.

22. However, the new section 95A would not be accessible to people who have not previously claimed asylum, and the powers in section 7 of schedule 5 would be exercised only when "the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power." It remains to be determined what will quantify an exceptional circumstance, however the likelihood appears to be that the removal of section 4(1)c of the 1999 Act will result in a large number of detainees denied access to a bail address.

23. For detainees who are unable to propose a private address to support their application for bail and who can no longer obtain such an address via Section 4(1)c bail support as it stands, release from detention on bail would be impossible in our view. Without section 4(1)c support from the Home Office, a detainee who would otherwise have relied on such a bail address will be unable to lodge their application for release on bail. In BID’s extensive experience it is normal practice for HMCTS hearing centres to refuse to list bail applications for a hearing without a bail address, save in very unique circumstances.

24. 53% of BID’s clients rely on a section 4(1)c bail address to support their application. Abolishing this provision would leave thousands of detainees unable to apply for bail, with the potential for their detention to become unlawful as a result.

Home Office Section 4(1)c bail accommodation: applications, grants by accommodation type, and refusals of support since January 2010

(Source: Data obtained from the Home Office by BID through a series of FOI requests since 2011)

Number of APPLICATIONS RECEIVED for

s4 (1)c bail accomm [1]

Number of

grants for

Initial Accomm

Number of

grants for

Standard Dispersal Accomm

Number of grants for

Complex Bail Accomm

Total number of grants for the year

2010

3,367

1,916

66

19

2001

2011

3,138

1,568

218

55

1841

2012

3,465

1,961

382

35

2378

2013

3,841

2,081

529

14

2624

2014

3635

2233

613

14

2860

November 2015


[1] Source: HM Courts &Tribunals Service, ‘Bail management information period April 2012 to March 2013’ & ‘Bail management information period April 2013 to December 2013’, produced for HMCTS Presidents’ stakeholder meeting. This is the most recent full year for which data is available.

[1] Some individuals made more than one application during this period.

Prepared 18th November 2015