Immigration Corner | Applying for bail while detained on immigration charges

Dear Mr Bassie,

I would like to know if it is possible for a person to apply for bail if held in detention on immigration charges. Any assistance would be appreciated.

OO

Dear OO,

With respect to bail applications concerning United Kingdom (UK) immigration matters persons may apply for bail in two main ways depending on their situation. Persons may apply to the Home Secretary, this is known as Secretary of State bail, at any time after they arrive in the UK.

Persons may also apply for the First-tier Tribunal (Immigration and Asylum Chamber) – only if they have been in the UK for eight days or more. In addition, persons may be automatically referred for a bail hearing if they have been in detention for four months or more.

Persons who are appealing to the Special Immigration Appeals Commission can apply to them for bail. A solicitor or legal adviser can help with a bail application. It is also advisable that persons read the “ Guide on representing yourself” if they are planning not to have a legal representative.

SECRETARY OF STATE BAIL

Persons are permitted to apply to the Home Secretary for bail from the first day they arrive in the UK. This is called ’Secretary of State Bail.’ Applicants should download and fill in form BAIL401 to explain why they are asking for bail.

They may also receive the form from the welfare officer, if they are in an Immigration Removal Centre; or their detention paperwork pack, if they are in a prison. Persons should be aware that it is Home Office staff that will decide their application and there will not be a hearing.

FIRST-TIER TRIBUNAL BAIL

Persons may apply to the independent ‘First-tier Tribunal’ for bail if they have been in the UK for more than eight days. Their application for bail will be decided by an independent judge at a hearing.

Applicants should download and fill in form B1. If persons cannot download the form themselves, they can ask the staff at the place where they are being held to assist, or contact the tribunal –by phone on 0300 123 1711 or by email at customer.service@justice.gov.uk

Persons who have a tribunal appeal hearing scheduled, should send the form to the tribunal or hearing centre where it is to take place. The applicants should be able to find the address of the venue if they do not know it.

Persons who do not have an appeal hearing should ask staff at the place that they are held and they should be able to send their application electronically to the right venue.

AUTOMATIC REFERRAL FOR BAIL

Please be aware that the Home Office will automatically refer persons to the First-tier Tribunal for a bail hearing if all of the following are true:

• He/she has been in detention for four months or more

• He/she is not being detained in the interest of national security

• There is no action being taken to deport him/her from the UK

• He/she has not applied for bail to the First-tier Tribunal in the last four months

The Home office will make an application on their behalf using all the information they have.

Persons can refuse the referral or choose to make their own bail application. Please be aware that the Home Office will apply on their behalf every four months unless they apply for bail themselves.

WHAT HAPPENS AT THE FIRST-TIER TRIBUNAL HEARING

There will usually be a hearing to decide if the applicant should be granted bail. This will happen a few days after their application is received – he/she will receive a ‘notice of hearing’ to state when and where it will take place.

Please note that the applicant will probably not be in the room for the hearing. It is more likely to happen over a video-link instead. If unsuccessful the Home Office will send the tribunal a document listing the reasons they think he/she should not get bail – this is referred to as a ‘Bail Summary’ and they will also send the applicant a copy. It is advisable that the applicant read information about the Tribunal’s rules and procedures.

I hope this helps.

John S. Bassie

John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a Fellow of the Chartered Institute of Arbitrators, a chartered arbitrator, the past global president of the Chartered Institute of Arbitrators and a member of the Immigration Law Practitioners Association (U.). Email: lawbassie@yahoo.com