Deportation, Detention And Immigration Bail
What Is Deportation?
Deportation is usually only applicable when a foreign national has a criminal conviction. Deportation can be ordered in the following circumstances:
- Where a court recommends deportation of an individual who is over the age of 17 and has been convicted of an offence which could be punishable with imprisonment
- If the Secretary of State believes the individual’s deportation is for “the public good and in the public interest”
- If an individual is under 18 and is the spouse, civil partner or child of a deportee
Bail For Immigration Detainees
Under UK immigration law, detention is the practice of holding people while they either wait for permission to enter the UK with approved immigration claims, or are removed from the country by deportation. Immigrant detainees have not necessarily committed any crime or criminal offence – immigration detention is not the same as being imprisoned. The Home Office will often proceed with detention if:
- There is reason to believe that the individual might escape if released from detention.
- The individual’s identity is yet to be established.
- That person’s removal from the UK through deportation is imminent.
Immigration detention is an administrative process, which means that the decision to grant bail is made by immigration official or immigration officer. If your bail application is denied, however, you can appeal to a judge to review your case.
If you have been threatened with detention, have a family member that is currently being detained and seeks bail, or removal directions have been issued for an individual to leave the UK, the immigration department at Adam Bernard Solicitors is here to help. The nature of these appeals is sensitive and demands an acute understanding of the British immigration system to best support our clients.
At Adam Bernard Solicitors we will take on the fight of our clients to ensure that their liberty is not compromised unjustly. We are passionately against the UK’s policy of detention and this ethical stance motivates the work we do. We will ensure that every possibility is exhausted in order to protect your claim.
Across both of our London offices we have a wealth of experience in managing immigration issues of our client’s that fall within the remit of this area. We are best equipped to ensure that your application has the highest chance of success and that your liberty is upheld.
What Are The Consequences Of Immigration Detention?
As well as being removed from the UK, you face the risk of also being banned from applying for a new visa or entering the UK for a period of up to 10 years.
How Long Could I Be Kept In Immigration Detention?
Under UK immigration law, there is no fixed or maximum period of detention in place currently. As a general rule, the period of immigration detention that someone might be held for rarely goes up to more than six months.
Since 2016, the new Immigration Act has seen automatic bail hearings become part of immigration detention policy. This means that if you are an eligible immigration in detention, you will be automatically forwarded for a bail hearing after four months of detention.
However, it is worth noting that this only applies for immigrants who have not manually applied for bail themselves. If you do and are unsuccessful, you will then be automatically referred four months later.
If you are due to be removed from the UK due to imminent deportation orders, then you might not be released from detention even if you are successfully granted bail.
If your deportation date is within 14 days of you successfully getting bail, then the Home Office will need to officially agree to your release before your removal from the UK.
If you believe or suspect that your period of detention has been unlawfully long, our expert immigration lawyers here at Adam Bernard Solicitors can help you to approach the High Court for a case review.
In some extreme cases, it is possible to find financial compensation for time spent in immigration detention.
Get in touch with us to find out more, our lawyers are always on-hand to offer. We are ready to assist.
How To Get Out Of Detention
Detaining immigrants should only be done for as long as what the law determines as a reasonable period of time, protecting detainees from lengthy detention. There is also legal power to keep detained immigrants only where there is a ‘realistic prospect of removal’ after being held in immigration custody. The Home Office and Immigration Authorities need to hold regular detention process reviews and to justify the legal status of detaining immigrants.
Because of this, it is possible to formerly request to be released from an immigration detention facility. You are permitted in certain immigration cases to request release from detention by making a request for temporary admission or bail.
There are two main ways in which you can do this. This can sometimes depend on where your deportation process is considered ‘imminent’ or not. A removal case may also depend on the applicant’s ability to have emergency travel documents issued in order to allow the foreign national to travel back to their home country via an international airport or other travel. It is worth noting that immigrants facing deportation orders may also face other barriers that prevent their ‘imminent’ deportation.
There are effectively two commonly used ways to get out of immigration detention centres, and which is most suitable for you depends on your current situation. The two main ways of applying for immigration bail in the UK:
- Home Office Bail (also known as ‘Secretary of State bail’, approved personally by the Secretary of State). You can apply directly for Home Office Bail any time after arriving in the UK in order to sort out your immigration matters. You can apply whether or not you have been detained.
- First-Tier Tribunal Bail (Immigration and Asylum Chamber granted by an immigration judge). You can only apply for First-Tier Tribunal Bail when you have been in the UK for eight days or more. You can also only apply for this if you are currently in detention.
Anyone who has either been detained or is liable to be detained might be eligible to apply for and be granted immigration bail in England and Wales. In order to do so, you will need to fill in and file an official immigration bail application form. This is known as form 401, and under UK immigration law and refugee law, you have full right to access legal advice and all the necessary paperwork to apply for bail. However, you can only submit your bail application and form 401 after you have been detained in the UK for at least seven days or more.
Who Is Eligible For Immigration Bail?
Basically, anyone who is being held in detention at a detention centre, prison, or immigration removal centre can become a bail applicant and apply to be released from detention. Of course, you must have being held on immigration matters in order for this to apply for you.
There are certain conditions that may either make it more or less likely for you to successfully apply for immigration bail. You may be more likely to get bail if:
- You have a place to stay in the UK. Having a bail address that the immigration authorities can rely on to keep in touch with you can help to increase the chances of a bail applicant successfully being released.
- You have at least one ‘Financial Condition Supporter’. This is a person who will pay money if you fail to follow the bail conditions set at your release. This can be in cash or, in Scotland, in bail bonds. This person will also attend any bail hearings that you are involved in. Having a reliable Financial Condition Supporter boosts your chances of success when applying for bail.
We always recommend that you include information about your intended bail address and the personal details of your Financial Condition Supporter in your initial application form in order to strengthen your case.
There are some conditions that may make it more difficult for you to successfully convince the Home Office and Immigration Service to release you from detention, including if:
- You have broken bail conditions in the past. If you have previously been in a situation where you have breached your bail conditions knowingly, this may reflect poorly with the border agency and UK Home Office. This could make it harder for you to appeal for bail.
- You have a criminal record. If you have got a previous criminal record and there is reason for the border agency and Immigration Services to believe that you may reoffend, you may find it more difficult to successfully get bail. In particular, if you were in breach of immigration law, refugee law, or international law, then this reflects poorly in your application.
- If the immigration authorities believe that your release may pose a threat to national security of the public interest, then it is highly unlikely that you will get bail.
Applying For Home Office Bail
It is necessary for immigration detainees to apply for Home Office bail first before applying for the First-Tier Tribunal bail. However, it is worth noting that this is not likely to be granted in most cases. In order to successfully apply for Home Office bail, you will need to provide comprehensive documentary evidence and persuasive information arguing why you should not be detained under the immigration law of England and Wales. This is often reliant on persuading the Home Office that they were incorrect to detain you in the first place. You are free to apply for Secretary of State bail from the very first day that you arrive in the UK.
One of the benefits, however, of applying for Home Office bail is that they will need to provide their exact reasons for detaining you. This can be useful when moving forward with your immigration bail application.
To apply to the Home Office, bail applicants will need to fill in form 401 which should be available from the welfare office or chief immigration officer in detention centres across the UK. There is also an online version. If you are in prison, the paperwork will be available in your detention paperwork pack.
The Home Office staffs decide your bail application to the Secretary of State only. There are no bail hearings for applications for Home Office bail.
Applying For First-tier Tribunal Bail
If the Home Office refuses your application for bail, you can then proceed to apply for the First-Tier Tribunal bail instead. To do this, you will need to fill in and submit form B-1, after which there is a chance of being granted bail hearings in front of an independent immigration judge. You can download a version of form B-1 online and fill it in that way. Alternatively, you can ask the chief immigration officer or detention centre staff where you are being held for the paperwork.
You can also contact the tribunal directly in order to request the B1 form. However, it may be important for you to know that the Tribunal cannot grant you bail if you are facing deportation orders imminently and will be removed from the UK within 14 days.
In the event that a bail applicant’s request is refused and denied by the First-Tier Tribunal, you will not be able to submit another bail application for 28 days – the Tribunal will automatically refuse any application for bail made 28 days after the initial refusal. If you are determined to present a second request, then you need to be able to convince the Tribunal that there has been a significant and material change in your current circumstances. This must be done in writing and submitted alongside your bail application.
If you currently have a tribunal appeal bail hearing scheduled, then you should send the B-1 form directly to the tribunal or bail hearings centre where it is happening. If you do not have an appeal hearing already scheduled, you may need to ask staff at your detention centre to send the application for you.
What Is Automatic Bail Referral?
If you have been in detention for four months or longer, you might be automatically referred for bail hearings with an immigration judge under the First-Tier Tribunal. You can also appeal to the Special Immigration Appeals Commission for bail instead in certain situations, which requires a slightly different process.
Under the new bail regime of England and Wales, the Home Office will automatically refer you to the First-Tier Tribunal for bail hearings, making you an automatic bail applicant. This will only happen if all of the following are true in your case:
- You have been in immigration detention for four months or more.
- There are no current deportation orders or plans to remove you from the UK.
- You are not being detained with convicted prisoners or because of a criminal record in the interests of national security and public interest.
- You have not yet applied for bail to the First-Tier Tribunal in the last four months.
If this is the case, then the UK border agency and Home Office will make an application for bail on your behalf with the information that is available to them. You can choose to refuse the referral if you wish, or you can choose to submit your own bail application instead.
Who Is Liable To Face Immigration Detention?
If you are a non-EEA national travelling to the UK, then you may be wondering whether you could face detention. The fact is that any individual in the UK who is subject to immigration control due to their immigration status might be liable. If this applies to you, then under certain circumstances, you could find yourself held in immigration centres for certain immigration purposes. However, this is particularly likely in certain situations, including:
- If you have in fact entered the UK illegally, or have been breaching the rules of your visa. This might include working in the UK without permission or overstaying the time period in which your visa is valid.
- If you are an individual subject to immigration control who is still waiting for the outcome of their investigation.
- If you have been specifically refused leave to enter or remain, and yet have either failed or refused to abide by the conditions of your immigration status in the UK.
Regardless of your particular circumstances and situation, we always recommend seeking expert and professional legal advice as soon as possible if you find yourself held in immigration detention. It is in your best interests to submit your bail application as quickly as you can, and the experienced team of immigration lawyers here at Adam Bernard can help you.
If you or someone you know has been held in detention, we advise getting in touch with immigration experts as soon as possible. At Adam Bernard Solicitors, we can assist with immigration bail guidance for deportation cases or asylum cases
Get in touch with us today to discover more about how we can help.
Frequently Asked Questions
What Are The Statutory Obligations Of The Detention Centre?
The medical staffs at any detention centre in England and Wales has certain responsibilities and duties towards the immigration detainees at their centre. In certain cases, medical officers and doctors working in immigration removal centres (IRCs) must contact the Home Office in regard to any concerns they have over the health of a detainee. These obligations are relevant and legal in situations where:
- The detainee is considering or performing self-harm and/or suicide.
- The detainee is a torture, trafficking, rape or other violation of human rights claim or gender-based crime.
- The detainee requires treatment for serious and severe mental disorders or mental illnesses.
- Or the detainee is having their mental or physical health and wellbeing actively harmed by being in detention.
The medical staffs at the detention centre are responsible for assessing a detainee’s health and wellbeing when a concern is raised. If the detainee’s welfare is at risk in detention, or if they have previously suffered traumatising abuse, then the medical staffs needs to send a full report to the Secretary of State immediately. They are also required to provide special attention and care to any detainee whose mental or physical condition requires it, with any special arrangements being made as necessary.
If you have been detained despite being applicable for one of the above categories, then you may need to take action. You might need a Rule 35 report, which demands that detention centre doctors report directly and immediately to the Home Office with information of any detainee whose health, either physical or mental, is likely to be harmed by continued and long detention. If this is the case for you, then your detention centre might be violating the immigration laws of England and Wales, and you should seek professional legal advice, assistance and legal aid in order to support your immigration case.
What Happens If My Bail Application Is Refused?
It is also worth remembering that if you have been refused bail within the last 28 days, then you won’t be able to seek another hearing at a tribunal. This is only possible in rare and extreme cases in which the bail applicant’s situation has changed significantly. If you want to do this, you’ll have to explain what you think has changed as part of your application.
If refused bail, you will receive a written statement from the Home Office detailing the precise reasons for the refusal. This can be very useful when moving forward with future bail applications.
If I Am Successful, What Will My Bail Conditions Be Like?
If you are a successful bail applicant and have your case approved, you will be allowed to leave the immigration removal centre. In this instance, you will be considered ‘released on bail’. However, all successful bail applicants are given specific requirements they must meet while released on bail.
Some of the most common bail conditions are that you live at a specific address upon release, often with family members or personal supporters. You are also very likely to be required to report regularly to a police station or reporting station.
Successful bail applicants must always be aware that upon being granted bail and being released from immigration detention, there will always be bail conditions to take into consideration. All detainees granted bail will have at least one condition they need to obey upon release. This might include:
- Having to attend bail hearings or appointments.
- Being restricted when it comes to which bail address you can live at while on release.
- Needing to frequently meet and report to a chief immigration officer or other immigration law official.
- Having a restriction on the activities you can do while in the UK, including things such as work and studies.
- Being made to have an electronic monitoring tag fitted for the duration of time you are released on bail.
- Being required to obey any other particular bail conditions set by the immigration officials granting your release on bail.
What Happens If I Don’t Follow My Bail Conditions?
There is a very good chance that either you or your Financial Condition Supporter may need to promise to pay money in the event that you break your bail conditions. This is known as a ‘financial condition’, and having a supporter can help improve a bail applicant’s chances of success. The conditions of your bail might change after you are officially granted bail.
It is also worth noting that there will almost certainly be consequences if you do not follow the terms of your bail. For example, you might:
- Be put back into detention.
- Be charged with criminal charges.
- Have your bail conditions changed and made stricter.
- Need to pay the amount agreed at your bail hearing – this might mean that your Financial Condition Supporter will have to pay on your behalf.
Who Should Not Be Detained Under The Home Office’s Immigration Policy?
The Home Office has a specific policy aimed at preventing adults who are deemed to be at risk from either being held in immigration detention or, if detention is necessary, that they spend as little time as possible being detained. The Immigration Act 2016 sets out guidelines for ‘Adults at Risk in Immigration Detention’, which contains certain conditions and experiences that suggest which immigration detainees could be particularly vulnerable while being held in detention centres. In such cases, the Home Office may grant temporary release on a strict time limit and under certain bail conditions instead of holding the detainee further. Situations in which the Immigration Service may find a detainee to be unsuitable for detention includes:
- If the detainee suffers from a serious mental health condition, mental disorder or impairment. This can cover a wide range of mental illnesses, including psychiatric illnesses, severe learning disabilities and serious clinical depression. It largely depends on both the nature and severity of the detainee’s condition.
- If the detainee has been a victim of torture. In such cases it is not deemed as appropriate, responsible, or in the detainee’s best interests to keep someone who has suffered from torture in immigration detention.
- If the detainee is elderly, they are considered a vulnerable person under the Home Office’s adults at risk policy. This most often automatically applies to any immigration detainees over the age of 70.
- If the detainee is a pregnant woman. Whether facing deportation or not, a pregnant woman will be considered a vulnerable person and will likely not be held in immigration detention.
- If the detainee suffers from a serious physical health condition or illness. In such cases that somebody’s physical health needs cannot be sufficiently met while being held in an immigration detention centre, then the Immigration Service may view it as inappropriate to continue detaining them.
- If the detainee suffers from a serious and debilitating physical disability. This may cover people who require wheelchairs for mobility, people who suffer from cerebral palsy, multiple sclerosis, severe arthritis or other physical disabilities.
- If the detainee has previously been a victim of human trafficking and modern slavery. Immigration detainees who have been victims of human rights violations count as extreme cases under the immigration laws of England and Wales. Foreign nationals in this situation may be deemed unsuitable for immigration detention centres.
- If the detainee is a victim of sexual abuse or gender-based violence such as rape or genital mutilation. Immigration Services may consider it against such immigration detainees’ best interests to keep them detained.
- If the detainee suffers from a post-traumatic stress disorder. Whether related to one of the above experiences or not, PTSD is a mental illness and under the immigration laws of England and Wales, it might be deemed that keeping a traumatised individual in a detention centre is inappropriate.
- If the detainee is a transsexual or intersex person, then the Immigration Service may consider them a vulnerable person.
It’s worth remembering that the general rule, people who fall under these categories are considered people who should not be detained ‘except under very exceptional circumstances’. Immigration detainees who fit these criteria will not necessarily be released under Immigration Powers. According to the Home Office and the current immigration system, it remains a case of administrative detention and administrative process where it is at the discretion of the Immigration Service as to what decision is made on whether a detainee is considered an ‘exceptional circumstance’.
Unfortunately, despite these guidelines, what is considered ‘very exceptional circumstances’ is not defined and, as such, there remain a lot of foreign nationals who fall under these categories and yet still spend lengthy periods facing indefinite detention. The Immigration Service is free to choose whether a detainee’s situation constitutes grounds for release or not, and they may dispute your claim.
It is very likely that you will need to provide the detention centre and relevant immigration officials with independent evidence of you falling into some of the above categories. For example, if you have previously been a victim of a human rights crime such as torture, human trafficking or have been a victim of sexual abuse and violence, then you may need to provide documentary evidence of this. In particular, if you have been detained as a result of an asylum claim to the Home Office, and being a victim of one of these crimes and falling into one of these categories is a key part of your claim, then being able to satisfy the burden of proof with the right evidence could be pivotal in both ending your period of detention as well as having your asylum claim granted.
Also, in addition to the above categories covering all adults falling under the Home Office’s At Risk policy, unaccompanied minors are supposed to never be detained for the sake of child protection. Only in exceptional and extreme cases should children be detained. It is also worth noting that in the case of asylum seekers and some deportation cases; the Home Office doesn’t have access to the identity documents of the detainees. As such, children and minors have sometimes been wrongly detained by the Immigration Services because they have been incorrectly identified as adults.
Why Our Skilled Worker Visa Solicitors?
- Our team of immigration solicitors in London are passionately against the UK government’s policy of detention. We will strive to ensure that every avenue is covered to protect the liberty of our clients
- We have years of experience in completing bail applications for our clients. We have achieved numerous successes as evidenced through our client testimonies.
- In order for your case to stand the best prospect of success, visit one of our London offices to ensure that you are comprehensively represented by one of our team