Overview of bail for detainees
Under immigration law, those found to be breaking immigration rules may be held in a detention centre while they wait until they are either cleared to enter or they are deported from the country. Detainees are not necessarily deemed to have committed an offence and immigration detention is not the same as imprisonment.
The Home Office will usually keep someone in a detention centre if the following applies:
- They believe the individual might abscond if released from detention
- They cannot verify the individual’s identity
- The individual’s removal from the country through deportation is imminent
When a person finds themselves in detention, a decision to grant bail is made by an immigration official or immigration officer. In the event an individual’s case is denied, they can appeal for a judge to review the case.
If you’d like to get some more in-depth guidance on this area of immigration law, contact our experts who are ready to assist you with your query. It can be difficult to obtain release when detained, and we would always recommend seeking professional assistance as soon as possible.
What are the consequences if I’m detained?
If you are detained in an immigration detention centre, as well as being deported from the country you also run the risk of being banned from making any visa applications for the next 10 years. While this will only happen in extreme cases where the Home Office has sufficient reason, you should seek legal advice to find out what the possible consequences of your detainment are.
If you or someone you know has been held in an immigration detention centre, would strongly advise getting in touch with immigration law experts.
Here at Newcastle immigration lawyers, we are specialists in this area and can offer legal representation for those needing assistance with immigration bail guidance, asylum cases, helping vulnerable detainees and more.
Immigration bail cases should be dealt with as a matter of urgency as they are extremely time-sensitive. To find out more about how we can help, get in touch today.
Who is eligible for immigration bail?
Any person being held at a detention centre on immigration matters is able to apply for immigration bail. There are some factors which will make you more or less likely to be released. Your chances of being released on bail will be higher if:
- You have somewhere to stay in the UK – Having an address the immigration authorities can use to keep in touch with you can improve your chances of getting bail
- You have at least one ‘Financial Condition Supporter’ – This is someone who offers to pay money if you fail to keep to your bail conditions. These will be set at release. Having a reliable Financial Condition Supporter makes it much more likely that you will obtain bail.
It’s highly advised to include the details of both your bail address and Financial Condition supporter in your initial application form to make your case as strong as possible.
How long could I be kept in immigration detention?
Although there is no limit to the amount of time someone can be kept in a detention centre, as a general rule the period of time someone is usually held rarely exceeds 6 months.
In the past, however, this has led to some cases of cumulative custody period, where an individual is released, only to be detained again soon after.
Updates to the Immigration Act in 2016 resulted in automatic bail hearings becoming part of detention policy. What that means is if you are held in detention, you will be automatically forwarded for a bail hearing after being held for 4 months.
Please note that this only applies to those detainees who haven’t applied for bail themselves. If you manually made a claim for a bail hearing, then you will have to wait another 4 months from the date your application was refused.
If you are due to be deported and your deportation date is within 14 days of your release from detention, the Home Office will need to approve your release.
If you believe you have been held in detention for an unlawfully long period of time, it’s possible to take your case to the High Court for an appeal. This is a complex process, but our Newcastle immigration lawyers are here to help if you find yourself in this situation and require legal representation.
If you have spent longer than necessary in a detention centre, in extreme cases you may be entitled to financial compensation.
For additional information or advice on any of the above, get in touch with our team which is always on-hand to assist at short notice. In addition to our regular packages, we even offer a specialised urgent advice package designed for those who need their case reviewing immediately. We’re always ready and available.
Getting released from detention
The law states that detainees should only be held for as long as is considered a reasonable period of time. This is to prevent detainees from facing lengthy spells in detention. The immigration authorities are only able to hold detained immigrants when there’s a “realistic prospect of removal”. When holding immigration detainees, the Home Office and immigration officials must hold regular detention process reviews to justify keeping the individual detained.
Thus, it’s possible to officially request your release from a detention centre. In some cases, it may be possible to request your temporary release of bail. There are two ways to do this and the option you choose will depend on how urgent your case is.
- Home Office Bail (known to as Secretary of State Bail who will need to personally approve your release) – you can apply for this any time after arriving in the UK, whether you have already been detained or not.
- First-Tier tribunal Bail (granted by a judge) – you can only apply for this after you’ve been in the UK for 8 days or more and you’re currently in detention.
If you have been detained or you believe you are liable to be detained in England or Wales then you might be able to apply for immigration bail. To do this, you would need to complete and submit the immigration bail application form known as Form 401.
Under UK and international refugee law, you have rights to legal access and paperwork to apply for bail. However, you can only submit this Form 401 and apply for bail after 7 days of detention.
What are my chances of being granted bail?
In some circumstances, it may be difficult to convince the Immigration Service and Home Office to release you. If any of the following applies, you may have issues when trying to obtain bail:
- You have broken bail conditions in the past – If you’ve previously breached bail conditions, then this could make it more difficult to gain bail
- You have a criminal record – Those with criminal records, in particular for convictions related to immigration law, refugee law or international law, will face extra hurdles when applying for bail
- You are deemed a threat to national security threat – If the Immigration Service believes your release goes against the public interest, you will find it difficult to get bail
Overview of automatic bail referral
In most cases, those who have been in detention for four months are automatically referred for bail hearings with a judge under First-Tier Tribunal. You are also able to make an appeal to the Special Immigration Appeals Commission, although this process differs slightly.
Under the immigration rules of England and Wales, you will be automatically referred to the First-Tier Tribunal for bail hearings by the Home Office, providing the following applies:
- You’ve been in immigration for 4 months+
- There are no deportation orders or plans to deport you from the country
- You aren’t detained due to a criminal record or considered a national security threat
- You haven’t manually applied for a First-Tier Tribunal in the past 4 months
If all of the above applies, then the Home Office will automatically make a bail application on your behalf. If you would prefer to, you can choose to refuse the application, or you can make your own bail application. If you don’t become a bail applicant by filing the application yourself, the Home Office will do it for you.
Who is liable to face immigration detention?
Anybody who is in the country and is subject to immigration control may be liable for detention. If these conditions apply to you then you may find yourself facing detention. However, there are some situations where detention will be much more likely. These are:
- If you entered the country illegally or you have breached the rules of your visa. Breaches may include overstaying the allowed time period or working when your visa does not permit you to do so
- If you are awaiting the results of your examination
- If you’ve been refused the right to leave or remain, but have to conform to those conditions of your immigration status
Irrespective or your individual circumstances that have led to you being held in a detention centre, we would always advise you to seek. It is also crucial that you treat your bail application with a degree of urgency.
Our team of trained lawyers are specialists in this area of immigration law, and can put together a strong case to help you obtain bail. We offer advice and assistance and can are available to put together your application and give you the best chances of success.
Last modified on June 3rd, 2021 at 8:16 am
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