3. Memorandum from Bail for Immigration
Bail for Immigration Detainees (BID) is a registered
charity with wide experience of preparing and presenting bail
applications on behalf of asylum seekers detained under immigration
legislation. We are pleased to learn that the Joint Committee
on Human Rights is considering reporting to each House on the
human rights implications of the Nationality, Immigration and
Asylum Bill. BID would like to take this opportunity to raise
our concerns relating to Clause 48 of the Bill which will largely
repeal Part III of the 1999 Immigration and Asylum Act.
The human rights implications of Clause 48 of
Part III of the Immigration and Asylum Act made provision
for automatic bail hearings after 7 and 35 days. In BID's view
this would have provided some safeguards against indefinite detention
resulting from administrative and procedural delays and errors,
and some degree of judicial scrutiny of detention. This is a requirement
under Article 5 of the European Convention on Human Rights.
The Government accepted the need for automatic bail
hearings in 1999 but the legislation was never implemented.
[Detention] is necessary in a small number of cases,
but there must be proper safeguards. Part III fulfils the commitment
in the White Paper to introduce a more extensive judicial element
in the detention process. That will be achieved by introducing
routine bail hearings for those detained under immigration legislation.
The Rt. Hon. Jack Straw, 2nd Reading
of the 1999 Immigration and Asylum Bill (Act), 22nd
February 1999, Hansard, Col 39
For the reasons set out below, BID is extremely concerned
that the current Bill suggests no alternative safeguards to those
contained within Part III.
i) Inadequacies in the rights to apply for
bail under existing legislation
There is provision for bail hearings under existing
legislation and the Explanatory Notes to the 2002 Bill state that
"the rights to apply for bail under existing legislation
will remain in place."(p 20). However, there are several
reasons why significant numbers of detainees cannot access judicial
oversight of detention. Two of the principal obstacles are the
merits test for the use of public funds and the requirement for
A) The merits test for the use of public funds
for legal representation in bail applications:
Whilst there has been provision of public funding for the legal
representation of detainees in bail applications since January
2000, it is not the case that all those who wish to apply for
bail may do so. The 'merits test' requires legal representatives
to assess the potential for success in bail applications. If they
believe that there is a less than 50 per cent chance of success
they are prohibited from employing public funds to represent their
clients in bail applications. The chances of success are often
perceived to be less than 50 per cent, in many cases due to the
requirement for sureties. Furthermore, the lack of full disclosure
of the reasons for detention makes it extremely difficult to make
a prediction as to the likely outcome of the bail application.
No statistics are available on the numbers of detainees denied
a bail application due to the implementation of merits test, but
it is BID's experience that a significant number of detainees
do not have access to a bail application by their representatives.
A common reason given by representatives is that lack of sureties
prevented them from running a bail application for the detainee.
B) The requirement for sureties: Primary
legislation giving the right to a bail hearing before the Immigration
Appellate Authority does not direct that sureties are always required.
However, the Asylum Appeals (Procedure) Rules 2000 which govern
court procedures and forms require two potential sureties to be
inserted on the bail application form. Many legal representatives
take the view that they cannot comply with this requirement without
two sureties and therefore will not list bail applications without
two names. Asylum seekers rarely have family or friends who can
stand surety for them, particularly given the large sums of money
that are often required. BID has lobbied for some time for clarification
on the situation in relation to sureties.
However, at the present time, it remains the case that many detainees
never reach the stage where they are afforded an opportunity to
appeal for their liberty.
ii) The impact of Clause 48 of the Bill on
children who are detained
The White Paper Secure Borders, Safe Haven
endorses the policy of detaining children in asylum seeking families
prior to removal and raises the option of detention in other circumstances.
It is BID's view that the detention of children is incompatible
with the principles of the United Nations Convention on the Rights
of the Child, Article 37 (D) of which states
"Every child deprived of his or her liberty
shall have the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of
the deprivation of his or her liberty before a court or other
competent, independent or impartial authority and to a prompt
decision on any such action."
An increase in the use of detention for families
raises fundamental questions in relation to the welfare and rights
of children. In addition, there is no evidence cited in the White
Paper as to the need to detain families or as to why this practice
should now be deemed appropriate or proportionate. In BID's view
the practice of the detention of children should be halted immediately.
However, whilst the practice remains, there is a need for automatic
bail hearings to prevent the prolonged detention of children in
asylum seeking families.
iii) Bail in the context of imminent removal
During the second reading of the Bill, both the Home
Secretary and the Parliamentary Under-Secretary of State suggested
that automatic bail hearings would frustrate or delay the removal
of asylum seekers who had no further rights of appeal. This is
misleading as Part III has never been implemented so therefore
cannot be said to have been "exploited".
BID support the view of the National Association of Citizens Advice
Bureaux that "If detention of asylum seekers is genuinely
used only where demonstrably necessary to ensure removal,
then there is no reason to believe that routine bail hearings,
as provided for in Part III of the 1999 Act, would significantly
interfere with the efficiency or efficacy of the asylum determination
and removal processes."
iv) Alternatives to bail hearings
During the second reading of the Bill the Home Secretary,
David Blunkett and the Under Secretary of State, Angela Eagle
referred to judicial review and habeas corpus rights as an alternative
to automatic bail hearings.
BID is concerned that judicial review and/or habeas corpus are
not appropriate avenues for large numbers of detainees.
In BID's experience, legal representatives rarely
seek either remedy. Habeas Corpus reviews the lawfulness of the
power to detain and is rarely employed before a number of months
in detention have passed. Judicial review suffers from the defect
that High Court consider there is an alternative remedy available,
a bail application before the Immigration Appellate Authority.
Furthermore, the time and cost implications for both are considerable.
v) The need for automatic bail for those at
the end of the asylum process
Whilst there is no statutory maximum period of detention,
instructions to immigration officers enjoin them to remember that
In all cases detention must be for the shortest possible time.
However, in BID's experience, this has failed to prevent the Immigration
Service employing administrative detention for prolonged periods
of time. Indeed, concern about this situation was expressed in
the Concluding Observations of the Human Rights Committee when
monitoring the UK's compliance with the International Covenant
on Civil and Political Rights (ICCPR) in 2001.
"asylum seekers have been detained in various
facilities on grounds other than those legitimate under the Covenant,
including reasons of administrative convenience. The Committee
notes, moreover, that asylum-seekers, after final refusal of their
request, may also be held in detention for an extended period
when deportation might be impossible for legal or other considerations."
Delays in removals to countries including Algeria,
China, India and Pakistan are common. In BID's experience, detention
periods of 6 months is not uncommon and in some cases that BID
is aware of detention was maintained for over two yearsthe
worst case being incarcerated for just short of 3 years before
removal to country of origin.
In BID's experience the current system of bail can
result in people, including children and vulnerable adults with
mental and physical health problems, being deprived of their liberty
for long periods of time without access to the courts to review
this detention. Given this, and the intention to increase the
number of available spaces in detention, it is BID's view that
automatic bail hearings should be implemented immediately.
To support and illustrate the need for oversight
of detention by way of automatic bail hearings, several BID case
studies are attached. They demonstrate the potential for error
and delay that would be partly addressed through an automatic
right to apply for bail.
Should the Committee require further information
relating to any of the above points, please do not hesitate to
contact Bail for Immigration Detainees.
8 May 2002
The need for automatic bail hearingscase
studies from Bail for Immigration Detainees
The following case studies from BID's work in 2001/2
detail bail applications made by BID on behalf of asylum seekers
whose solicitors were unable or unwilling to act due to restrictions
on the right to apply for bail under existing legislation. BID
made successful applications for bail in each case.
A Eight months in detention without
oversight by a court due to errors on the part of the Immigration
Appellate Authority (IAA)
'A' sought asylum in the United Kingdom and was detained
from arrival. 'A's' solicitors had failed to make a bail application
on the basis that the case had little chance of success as there
were no sureties available and therefore public funds could not
be employed for a bail application. It became clear that the IAA
had made a serious error. The appeal hearing had not been re-listed
after an adjournment 4 months in to his detention. No application
for bail had been lodged up until that point. BID presented a
bail application and bail was granted for £10 recognisance
and no sureties.
B Mistakes by the Immigration Service
result in 7 months in detention before BID made a successful bail
'B' was detained on arrival and spent a total of
seven months in three different detention centres. Due to a mistake
on the part of the Immigration Service, 'B' was never produced
at the appeal hearing and his case was dismissed in his absence.
The errors were only discovered while BID was preparing Mr B's
bail application. He was released with one surety for £200.
C Seriously ill asylum seeker detained
for 3 months without a bail application being made- released following
intervention from BID
'C' lost contact with the Immigration Service when
he fell seriously ill with an AIDs related illness. He re-established
contact with the Immigration Service through his solicitor but
then was detained. He was detained for 3 months during which time
his representatives made no bail application. BID presented a
bail application that was dismissed. 'C' was then released on
temporary admission further to presentations being made by BID
to the Immigration Service who agreed that it was inappropriate
for detention to continue.
D Mother and young child detained for 4
months without a bail applicationreleased following intervention
'D' was detained with her 18 month old child when
removal directions were set to her home country. A judicial review
was lodged but the decision to detain maintained. No bail application
had been made by her legal representatives. BID made further representations
to the Immigration Service relating to the child's well being
and approached the medical centre at the detention centre for
confirmation of the situation. The doctor had concerns about the
child's apparent "failure to thrive" and referred the
child to a paediatrician. The mother and child were released shortly
afterwards having spent 4 months in detention.
E Nineteen year old detained on arrival
has no bail application for 6 months is released for £1
A nineteen year old 'E', claimed asylum on arrival
in the United Kingdom and was immediately detained in May 2001.
'E' did not have a bail application made by his legal representative
as, having been detained on arrival, he knew no-one in the UK
able to stand surety for him. BID made an application in November
2001 after 6 months detention and 'E' was released for a £1
recognisance with no sureties.
F Asylum seeker released on bail after
19 months in detention awaiting documentation
Chinese asylum-seeker arrived in February 1999 without
documentation and sought asylum the day after his arrival whilst
in a detention centre. His asylum claim was refused and his appeal
rights were exhausted. It is well known that the travel documentation
procedure for Chinese nationals normally takes a long time. Despite
this detention was maintained on the basis that 'documentation
will be issued without delay.' The process dragged on for
some time. Bail was granted in September of 2000 The conditions
included a surety offering £1,000 and daily reporting requirements.
He had been detained for 19 months.
162 See open letter from BID to immigration law practitioners
regarding sureties in bail applications, 8 Oct 2000 Back
"At the moment, there is an automatic right [to a] bail
hearing ¼ it has therefore been used as a method of ensuring
that people could avoid being held temporarily while their removal
from the country was being organized", David Blunkett, MP,
24 April 2002, col. 358; "Automatic bail hearings ¼
interfere with our attempts to achieve a fast and efficient process
and ¼ are simply another cause of delay", Angela Eagle,
MP, 24 April 2002, col. 431 Back
NACAB Briefing for Parliament on the Nationality, Immigration
and Asylum Bill, May 2002 Back
"Habeas corpus still applies." David Blunkett, MP,
24 April 2002, Column 359; "I emphasise that repeal of those
hearings does not remove an individual's right to appeal for habeas
corpus ... " Angela Eagle, MP, 24 April 2002, Col 431 Back
Operational Enforcement Manual (last reviewed and disclosed July