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IMMIGRATION BAIL & DETENTION

A non-EEA national may be detained in an immigration removal centre if, for example, they are an overstayer or illegal immigrant. Immigration removal centres are not quite like prisons, but nonetheless, they are a locked and secured environment. The Home Office tries to remove such detainees from the UK but sometimes they experience difficulties with this and detainees may remain in detention for long periods of time. If, for example, the detainee fears that they will be harmed or killed if they are returned to their country of origin they may make an asylum claim, and the Home Office will have to carefully consider the application. Or in some cases, where the detainee has no passport, there are difficulties in obtaining an emergency travel document from the Government of their country of origin, and so the detainee cannot immediately travel back to their country of origin.

Unlike other types of detention, there is no specific time limit for immigration detention. Some people are detained for months and, in some extreme cases, even for years. But there are very important principles both in English law and in human rights law that detention must not be arbitrary or disproportionate. Detainees are entitled to apply to the Chief Immigration Officer for bail (i.e., to be released, but on certain conditions, for example, to live and sleep at a certain address and to report to the Home Office at certain times).

If the Chief Immigration Officer does not grant bail detainees may apply for bail to the First-Tier Immigration Tribunal. In this situation, the bail application will be considered at a live hearing at the Tribunal by an Immigration Judge, who is independent of the Home Office and is not employed by them. In most cases, the detainee will physically remain in the removal centre and will be connected to the bail hearing at the Tribunal by video link.

Detainees can if they can, offer money (known as a recognisance) as a guarantee that, if they are granted bail, they will not break the conditions of bail. If a detainee is granted bail, but they do break the conditions, then they stand to lose the money they have put forward.

Detainees can also provide a surety or sureties to support their bail application. A surety is a person known to the applicant (for example a friend or relative) who offers a recognisance. Again, if the applicant is granted bail but they break the conditions of bail the surety can lose their money. If there is a surety, the Judge at the hearing will assess the surety and decide how much influence the surety might bring on the applicant to follow the conditions of bail if bail were granted.

In some cases, the Home Office provides accommodation for applicants who have been granted bail, but a surety can also offer accommodation for the applicant as well as a recognisance. In this situation, if bail is granted then the applicant must live at the surety’s home, and this tends to strengthen a bail application because the Judge is likely to believe that the surety will be able to bring a large degree of influence to bear on the applicant to follow conditions of bail.

Applicants can be represented at the Tribunal hearing by a legal representative, who will make representations to support their case. The Home Office is represented by a legal representative whose job it is to oppose the application for bail.

The Judge at the hearing will consider all the facts of the situation. If he/she believes that the applicant is likely to follow bail conditions, then he/she is likely to grant bail.

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