Covid 19 and UK successful immigration bail applications

Posted onApril 21, 2020

There has probably never been a more frightening time to be in immigration detention in the UK. Even if you are not classed as "vulnerable" because of an underlying health condition, such as asthma, living in close quarters with others isn’t what any of us would choose to do during a global viral pandemic. In this blog we look at Covid 19 and UK immigration bail applications and a recent OTS Solicitors bail application success story.

Online Immigration solicitors

If you need personal immigration law advice then the specialist Immigration lawyers at OTS Solicitors are here to help. Call us on 0203 959 9123 or complete our online enquiry form to arrange a video conference, Skype or telephone appointment.

Covid-19 and Immigration detention

The Home Office has reported that it has released 350 Immigration detainees from UK detention centres since the coronavirus outbreak but over 700 people are still detained in immigration detention centres.

In addition to committing to reviewing the detention of those currently incarcerated in Immigration detention centres, after a legal challenge, the Home Office has also said that it will introduce other measures in its Immigration removal centres, such as providing additional guidance about Covid-19 and implementation of spacing measures in communal areas.

If you, a friend or a family member is currently being held in an Immigration detention centre it is important to think about an immigration bail application instead of waiting for the Home Office to carry out its review of the appropriateness of continued detention of every detainee currently held in an Immigration removal centre.

The Home Office has said that its detention review will start with the most vulnerable detainees. However, immigration solicitors say that the Home Office don’t always know about the vulnerability of individual detainees. For example, Home Office officials aren’t necessarily aware of asthmatic or compromised immune system conditions or the particular mental health issues that a detainee is especially vulnerable to experiencing because of detention and exacerbated by the social distancing measures adopted in UK Immigration detention centres.

Therefore, if you, a friend or family member is still detained in an Immigration detention centre you should:

Make sure the detainee’s immigration solicitor knows about their health and vulnerability to Covid-19
Alert the immigration solicitor if a letter is received to say the detainee is at high risk or if measures are put in place in the detention centre because the detainee is considered to be vulnerable to Covid-19 infection
Consider an immigration bail application.

Immigration bail

Immigration legislation says that the Home Office only has the power and authority to detain someone in an Immigration detention centre if there is a realistic prospect of removing them from the UK. The court has the power to grant immigration bail to enable the detained person to return to live in the community whilst awaiting decisions about their removal from the UK.

The suspension of flights from the UK to a number of international locations because of the travel restrictions of a host of nation means that the Home Office has no prospect of giving effect to removal directions. As a consequence the detention of persons subject to immigration detention in an Immigration removal centre is ‘indefinite’ and therefore wrong if there is no realistic prospect of them being removed from the UK.

Immigration solicitors say that if Immigration detention is indefinite it engages the Hardial Singh (from the case of Singh, R (on the application of) v Governor of Durham Prison [1983] EWHC 1 (QB)) principles namely:

The Home Office must intend to deport the person and can only use the power to detain for that purpose
The deportee may only be detained for a period that is reasonable in all the circumstances
If, before the expiry of the reasonable period, it becomes apparent that the Home Office will not be able to effect deportation within a reasonable period, the Home Office should not seek to exercise the power of detention
The Home Office should act with all diligence and expedition to effect removal of the detained person.

Immigration law creates the statutory concept of 'immigration bail’, defined as the grant of bail by the Secretary of State to a person who is being detained or is liable to detention under a statutory provision. For example under paragraph 16(1), (1A) or (2) of schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal) or section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal) or section 36(1) of the UK Borders Act 2007 (detention pending deportation).

Under paragraph 1(5) of the Immigration Act 1971 a person may be granted and remain on immigration bail even if the person can no longer be detained provided that the person is liable to detention under a provision mentioned in sub-paragraph (1) of the Act or the Secretary of State is considering whether to make a deportation order under section 5(1) of the Immigration Act 1971.

How to get Immigration bail

During the coronavirus outbreak, Immigration solicitors are being asked the question ’’how do you best get Immigration bail?’’. The best way to succeed on an immigration bail application is to:

Know your client and the best way to present his or her case for Immigration bail
Know the law – both the detailed legislation on Immigration bail as well as all the relevant Immigration case law.

That is because when the Secretary of State (or the First Tier Tribunal if the Home Office refuses Immigration bail) is deciding whether or not to grant Immigration bail they have to consider a list of mandatory relevant factors listed in the Immigration legislation. The factors are:

The likelihood of the person failing to comply with a bail condition and
Whether the person has been convicted of an offence (whether in or outside the UK and
The likelihood of a person committing an offence while on immigration bail and
The likelihood of the person's presence in the UK, while on Immigration bail, causing a danger to public health or being a threat to the maintenance of public order and
Whether the person's detention is necessary in that person's interests or for the protection of any other person and
Such other matters as the Secretary of State or the First-tier Tribunal thinks relevant.

In the cases coming up for immigration bail, the best way to succeed in an Immigration bail application is to know your client and understand any particular Covid-19 risk factors (with supporting evidence if available) and to have a thorough grasp of the law so that if someone is detained in an Immigration removal centre it can be argued that continued incarceration in a UK detention centre without bail does not comply with the legislation on Immigration detention. That is because detention is meant to be time limited to enable removal from the UK to take place. When deportation and removal simply isn’t possible because of a global pandemic you can use the Immigration detention legislation to full effect as did Stephen Slater, Senior Caseworker and In-house Advocate at OTS Solicitors, when securing the recent release on Immigration bail of a person detained in Harmondsworth Immigration removal centre.

Online Immigration solicitors

If you need help with a bail application, worried about removal from the UK or want to ask a question about personal immigration law then the specialist Immigration lawyers at OTS Solicitors are here to help. Call us on 0203 959 9123 or complete our online enquiry form to arrange a video conference, Skype or telephone appointment.