Bail/Detention

Detailed guidelines on how the power to detain is to be exercised provide that:

1. There is a presumption in favour of release

2. Special consideration must be given to families and unaccompanied children

3. There must be strong grounds for believing that a person will not comply with conditions of release for detention to be justified.

4. All reasonable alternatives to detention must be considered before detention is authorised.

5. Each case must be considered on its merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved.

6. To be lawful, detention must be based on one of the statutory powers and accord with Home Office policy and with the limitations implied by domestic and human rights case law.

7. Detention must be used sparingly and for the shortest period necessary.

8. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to detain later in the process once any appeal rights have been exhausted, and

9. detention is most usually appropriate:

Excluding asylum cases, the power to detain arises broadly in the following six scenarios:

1. On arrival in the UK pending a decision on a person's immigration status.

2. When a person leaves or seeks to leave the UK.

3. Pending a decision to remove a person or enforce their removal from the UK.

4. Persons awaiting deportation.

5. EEA nationals and their family members who do not qualify, or are to be excluded, under the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (EEA Regs 2006), or

6. Ship, aircraft and Channel Tunnel train crew members who breach, or are reasonably suspected of breaching UK immigration law.

In practice, the largest numbers of persons in the detention estate are foreign national prisoners awaiting deportation, those seeking asylum who are subject to the detained fast track, and persons awaiting removal following the exhaustion of any appeal rights.

The grant of bail allows a person to be in the UK temporarily. Bail enables sureties to be taken and forfeited should the person fail to comply with any bail conditions. An initial application for bail is made to the Chief Immigration Officer (CIO) on behalf of the Home Office

If the application is refused, a bail application can be made to the First-tier Tribunal (Immigration and Asylum Chamber) (the tribunal).

Where removal directions are in place and scheduled within the period of 14 days from the decision to grant bail is made, the Home Office’s consent is required before a person can be released on bail.

If the tribunal refused bail it is required to dismiss, without a hearing, any repeat application for bail within a period of 28 days starting from the date of the tribunal’s refusal unless there has been a 'material change in circumstances'.

The tribunal will try to make sure bail hearings are heard within 3 working days from receipt of the application.

When bail is granted, it is granted for a limited period usually with conditions attached, eg a requirement to live at a specified address.

Where bail is granted by a judge, the period is decided by judge (usually 3 months) and conditions are imposed as the judge thinks appropriate.

Our immigration solicitors provide competent, confidential legal advice and are able to offer effective legal representation.