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Bail for Immigration Detainees

Bail for Immigration Detainees

The title of this post is a reference both to the excellent organisation, Bail for Immigration Detainees (BID to its friends) and to the underlying concept. BID helps immigration detainees make bail applications and works with the Free Representation Unit to get (mainly) barristers to do pro bono lists of bail cases at the major hearing centres, mainly Taylor House near Angel in London, York House near Heathrow and Newport, where Campsfield Detention Centre bail applications are heard.

I recently took on one of these BID lists at York House. One of the three cases was withdrawn the previous day because removal directions were made for the detainee for later that week. Making a bail application would have been pointless in these circumstances as no immigration judge would grant bail to a detainee who is about to be removed from the country.

The second case also looked hopeless. The detainee had with remarkable regularity been committing fairly minor offences for over a decade now and the Home Office had finally decided to deport him. He had lost his deportation appeal but the reconsideration application was still pending. Or, at least, it was until the day before the hearing, when reconsideration was refused. This was the end of the line, so bail also looked hopeless. However, the detainee was very seriously ill and needed to follow a complex 24 hr medication regime, meaning that he would be unable to go to ground without seriously jeopardising his health. An old friend turned up, his girlfriend and their 6 month year old child and two of his adult children, one of whom he was proposing to live with if bail was granted. The immigration judge refused to hear evidence from the detainee or his two sureties and refused bail.

He will now be removed, and the doctors say he’ll be dead within a year. It won’t be a nice way to go, either.

I spoke to some court staff afterwards and many representatives apparently withdraw bail applications if they see this particular immigration judge will be hearing their client’s application. This prevents a damaging refusal appearing on the court file and means that the next judge isn’t necessarily influenced from the start by a previous refusal. Once bail has been refused by one judge, it is usually necessary to show something substantial has changed since the last application if you are to succeed with a second or third. This judge’s record for completing the bail list for his court is apparently by 11.30am, which is quite impressive in its way. As a comparison point, the other bail list that day wasn’t over until nearly 3.30pm.

The last case looked like a good one to me and I was optimistic. We had a different judge, with a reputation for thoughtfulness. This detainee came from Eritrea, a country to which it is more or less impossible to remove people who do not possess identity documents, and he had already been detained for over five months. Detention is only lawful where there is a realistic prospect of the detainee being removed, and there simply wasn’t in this case. On top of that, all but one short paragraph of the Home Office’s bail summary (their reasons for opposing bail) consisted of standard platitudes that would apply to almost any asylum seeker and certainly weren’t sufficient to justify detention.

The fly in the ointment was that the detainee had made a second asylum claim using a false identity and had been imprisoned for this – for twelve months. No wonder the prisons are so full. A deportation decision had also been made as a consequence. He had been unable to appeal this as there is only five days to do so when you are detained, and he had no way of contacting a lawyer. He’d done it to get back on benefits, as these had been automatically withdrawn when his first asylum claim was over.

After a 45 minute hearing, the judge concluded that it was for the High Court to decide questions of lawfulness, not him (true enough), and that the use of deception in the second asylum claim meant he, the judge, could not be satisfied the detainee would comply with any bail conditions. On a different day or had I perhaps been more eloquent, bail mght have been granted, but the decision was a justifiable one.

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