Joint Committee On Human Rights Seventeenth Report

3. Memorandum from Bail for Immigration Detainees

Bail for Immigration Detainees (BID) is a registered charity with wide experience of preparing and presenting bail applications on behalf of asylum seekers detained under immigration legislation. We are pleased to learn that the Joint Committee on Human Rights is considering reporting to each House on the human rights implications of the Nationality, Immigration and Asylum Bill. BID would like to take this opportunity to raise our concerns relating to Clause 48 of the Bill which will largely repeal Part III of the 1999 Immigration and Asylum Act.

The human rights implications of Clause 48 of the Bill

Part III of the Immigration and Asylum Act made provision for automatic bail hearings after 7 and 35 days. In BID's view this would have provided some safeguards against indefinite detention resulting from administrative and procedural delays and errors, and some degree of judicial scrutiny of detention. This is a requirement under Article 5 of the European Convention on Human Rights.

The Government accepted the need for automatic bail hearings in 1999 but the legislation was never implemented.

[Detention] is necessary in a small number of cases, but there must be proper safeguards. Part III fulfils the commitment in the White Paper to introduce a more extensive judicial element in the detention process. That will be achieved by introducing routine bail hearings for those detained under immigration legislation.

The Rt. Hon. Jack Straw, 2nd Reading of the 1999 Immigration and Asylum Bill (Act), 22nd February 1999, Hansard, Col 39

For the reasons set out below, BID is extremely concerned that the current Bill suggests no alternative safeguards to those contained within Part III.

i)  Inadequacies in the rights to apply for bail under existing legislation

There is provision for bail hearings under existing legislation and the Explanatory Notes to the 2002 Bill state that "the rights to apply for bail under existing legislation will remain in place."(p 20). However, there are several reasons why significant numbers of detainees cannot access judicial oversight of detention. Two of the principal obstacles are the merits test for the use of public funds and the requirement for sureties.

A)  The merits test for the use of public funds for legal representation in bail applications: Whilst there has been provision of public funding for the legal representation of detainees in bail applications since January 2000, it is not the case that all those who wish to apply for bail may do so. The 'merits test' requires legal representatives to assess the potential for success in bail applications. If they believe that there is a less than 50 per cent chance of success they are prohibited from employing public funds to represent their clients in bail applications. The chances of success are often perceived to be less than 50 per cent, in many cases due to the requirement for sureties. Furthermore, the lack of full disclosure of the reasons for detention makes it extremely difficult to make a prediction as to the likely outcome of the bail application. No statistics are available on the numbers of detainees denied a bail application due to the implementation of merits test, but it is BID's experience that a significant number of detainees do not have access to a bail application by their representatives. A common reason given by representatives is that lack of sureties prevented them from running a bail application for the detainee.

B)  The requirement for sureties: Primary legislation giving the right to a bail hearing before the Immigration Appellate Authority does not direct that sureties are always required. However, the Asylum Appeals (Procedure) Rules 2000 which govern court procedures and forms require two potential sureties to be inserted on the bail application form. Many legal representatives take the view that they cannot comply with this requirement without two sureties and therefore will not list bail applications without two names. Asylum seekers rarely have family or friends who can stand surety for them, particularly given the large sums of money that are often required. BID has lobbied for some time for clarification on the situation in relation to sureties.[162] However, at the present time, it remains the case that many detainees never reach the stage where they are afforded an opportunity to appeal for their liberty.

ii)  The impact of Clause 48 of the Bill on children who are detained

The White Paper Secure Borders, Safe Haven endorses the policy of detaining children in asylum seeking families prior to removal and raises the option of detention in other circumstances. It is BID's view that the detention of children is incompatible with the principles of the United Nations Convention on the Rights of the Child, Article 37 (D) of which states—

"Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent or impartial authority and to a prompt decision on any such action."

An increase in the use of detention for families raises fundamental questions in relation to the welfare and rights of children. In addition, there is no evidence cited in the White Paper as to the need to detain families or as to why this practice should now be deemed appropriate or proportionate. In BID's view the practice of the detention of children should be halted immediately. However, whilst the practice remains, there is a need for automatic bail hearings to prevent the prolonged detention of children in asylum seeking families.

iii)   Bail in the context of imminent removal

During the second reading of the Bill, both the Home Secretary and the Parliamentary Under-Secretary of State suggested that automatic bail hearings would frustrate or delay the removal of asylum seekers who had no further rights of appeal. This is misleading as Part III has never been implemented so therefore cannot be said to have been "exploited".[163] BID support the view of the National Association of Citizens Advice Bureaux that "If detention of asylum seekers is genuinely used only where demonstrably necessary to ensure removal, then there is no reason to believe that routine bail hearings, as provided for in Part III of the 1999 Act, would significantly interfere with the efficiency or efficacy of the asylum determination and removal processes."[164]

iv)  Alternatives to bail hearings

During the second reading of the Bill the Home Secretary, David Blunkett and the Under Secretary of State, Angela Eagle referred to judicial review and habeas corpus rights as an alternative to automatic bail hearings.[165] BID is concerned that judicial review and/or habeas corpus are not appropriate avenues for large numbers of detainees.

In BID's experience, legal representatives rarely seek either remedy. Habeas Corpus reviews the lawfulness of the power to detain and is rarely employed before a number of months in detention have passed. Judicial review suffers from the defect that High Court consider there is an alternative remedy available, a bail application before the Immigration Appellate Authority. Furthermore, the time and cost implications for both are considerable.

v)  The need for automatic bail for those at the end of the asylum process

Whilst there is no statutory maximum period of detention, instructions to immigration officers enjoin them to remember that In all cases detention must be for the shortest possible time.[166] However, in BID's experience, this has failed to prevent the Immigration Service employing administrative detention for prolonged periods of time. Indeed, concern about this situation was expressed in the Concluding Observations of the Human Rights Committee when monitoring the UK's compliance with the International Covenant on Civil and Political Rights (ICCPR) in 2001.

"asylum seekers have been detained in various facilities on grounds other than those legitimate under the Covenant, including reasons of administrative convenience. The Committee notes, moreover, that asylum-seekers, after final refusal of their request, may also be held in detention for an extended period when deportation might be impossible for legal or other considerations."

Delays in removals to countries including Algeria, China, India and Pakistan are common. In BID's experience, detention periods of 6 months is not uncommon and in some cases that BID is aware of detention was maintained for over two years—the worst case being incarcerated for just short of 3 years before removal to country of origin.


In BID's experience the current system of bail can result in people, including children and vulnerable adults with mental and physical health problems, being deprived of their liberty for long periods of time without access to the courts to review this detention. Given this, and the intention to increase the number of available spaces in detention, it is BID's view that automatic bail hearings should be implemented immediately.

To support and illustrate the need for oversight of detention by way of automatic bail hearings, several BID case studies are attached. They demonstrate the potential for error and delay that would be partly addressed through an automatic right to apply for bail.

Should the Committee require further information relating to any of the above points, please do not hesitate to contact Bail for Immigration Detainees.

8 May 2002

The need for automatic bail hearings—case studies from Bail for Immigration Detainees

The following case studies from BID's work in 2001/2 detail bail applications made by BID on behalf of asylum seekers whose solicitors were unable or unwilling to act due to restrictions on the right to apply for bail under existing legislation. BID made successful applications for bail in each case.

A  Eight months in detention without oversight by a court due to errors on the part of the Immigration Appellate Authority (IAA)

'A' sought asylum in the United Kingdom and was detained from arrival. 'A's' solicitors had failed to make a bail application on the basis that the case had little chance of success as there were no sureties available and therefore public funds could not be employed for a bail application. It became clear that the IAA had made a serious error. The appeal hearing had not been re-listed after an adjournment 4 months in to his detention. No application for bail had been lodged up until that point. BID presented a bail application and bail was granted for £10 recognisance and no sureties.

B   Mistakes by the Immigration Service result in 7 months in detention before BID made a successful bail application

'B' was detained on arrival and spent a total of seven months in three different detention centres. Due to a mistake on the part of the Immigration Service, 'B' was never produced at the appeal hearing and his case was dismissed in his absence. The errors were only discovered while BID was preparing Mr B's bail application. He was released with one surety for £200.

C  Seriously ill asylum seeker detained for 3 months without a bail application being made- released following intervention from BID

'C' lost contact with the Immigration Service when he fell seriously ill with an AIDs related illness. He re-established contact with the Immigration Service through his solicitor but then was detained. He was detained for 3 months during which time his representatives made no bail application. BID presented a bail application that was dismissed. 'C' was then released on temporary admission further to presentations being made by BID to the Immigration Service who agreed that it was inappropriate for detention to continue.

D  Mother and young child detained for 4 months without a bail application—released following intervention from BID

'D' was detained with her 18 month old child when removal directions were set to her home country. A judicial review was lodged but the decision to detain maintained. No bail application had been made by her legal representatives. BID made further representations to the Immigration Service relating to the child's well being and approached the medical centre at the detention centre for confirmation of the situation. The doctor had concerns about the child's apparent "failure to thrive" and referred the child to a paediatrician. The mother and child were released shortly afterwards having spent 4 months in detention.

E  Nineteen year old detained on arrival has no bail application for 6 months is released for £1

A nineteen year old 'E', claimed asylum on arrival in the United Kingdom and was immediately detained in May 2001. 'E' did not have a bail application made by his legal representative as, having been detained on arrival, he knew no-one in the UK able to stand surety for him. BID made an application in November 2001 after 6 months detention and 'E' was released for a £1 recognisance with no sureties.

F  Asylum seeker released on bail after 19 months in detention awaiting documentation

Chinese asylum-seeker arrived in February 1999 without documentation and sought asylum the day after his arrival whilst in a detention centre. His asylum claim was refused and his appeal rights were exhausted. It is well known that the travel documentation procedure for Chinese nationals normally takes a long time. Despite this detention was maintained on the basis that 'documentation will be issued without delay.' The process dragged on for some time. Bail was granted in September of 2000 The conditions included a surety offering £1,000 and daily reporting requirements. He had been detained for 19 months.

162   See open letter from BID to immigration law practitioners regarding sureties in bail applications, 8 Oct 2000  Back

163   "At the moment, there is an automatic right [to a] bail hearing ¼ it has therefore been used as a method of ensuring that people could avoid being held temporarily while their removal from the country was being organized", David Blunkett, MP, 24 April 2002, col. 358; "Automatic bail hearings ¼ interfere with our attempts to achieve a fast and efficient process and ¼ are simply another cause of delay", Angela Eagle, MP, 24 April 2002, col. 431 Back

164   NACAB Briefing for Parliament on the Nationality, Immigration and Asylum Bill, May 2002 Back

165   "Habeas corpus still applies." David Blunkett, MP, 24 April 2002, Column 359; "I emphasise that repeal of those hearings does not remove an individual's right to appeal for habeas corpus ... " Angela Eagle, MP, 24 April 2002, Col 431 Back

166   Operational Enforcement Manual (last reviewed and disclosed July 2001) Back

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