If you are or your loved one has been placed into detention , then they may be entitled to be released from detention. A person should be detained it it is actually necessary.

If your or a member of your family are in detention either after being detained by the Home Office or after the end of a prison sentence then they may be entitled to be released from detention on Immigration Bail as person should only be detained where it is actually necessary.

Immigration detention can occur where a person’s leave has expired, been cancelled, not having any form of leave or where a person has come to the end of a prison sentence.


When should a person be given bail?

A detained person may be entitled to bail it can be shown that;

  • Removal from the UK is not imminent
  • There is a barrier to removal such as a pending appeal
  • The risk of absconding is low
  • They are not a threat to the public
  • There is a suitable address to be released to
  • There are suitable sureties also known as financial condition supporters

In order to assess  whether bail should be granted then the matters listed in para 3(2) of schedule 10 to the Immigration Act 2016 come into play.

  • the likelihood of the person failing to comply with a bail condition,
  • whether the person has been convicted of an offence (whether in or outside the United Kingdom or before or after the coming into force of this paragraph),
  • the likelihood of a person committing an offence while on immigration bail,
  • the likelihood of the person's presence in the United Kingdom, while on immigration bail, causing a danger to public health or being a threat to the maintenance of public order,
  • 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.

Paragraph 6 of the President’s 2018 Bail Guidance points out that: “When considering whether to grant bail, judges are not deciding whether continued detention is lawful”. 

What is lawful detention?

In considering the lawfulness of the detention, the following four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh, [1984] WLR 704 at para 7 ought to be followed, these have been endorsed by the judgement of the European Court of Human Rights in the case of J.N v The United Kingdom, application no 37289/12, 19th May 2016 at page 27 para 97

  • The Secretary of State 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 Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
  • The Secretary of State should act with reasonable diligence and expedition to effect removal. 

The Home Office will argue that detention is necessary where the person has committed any criminal offences  then will argue;

There is a risk of absconding in order to justify the length of detention and often will rely pon case law such as:

In Lumba [2011]UKSC 111  the Supreme Court endorsed  the views of R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 - “A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”

The court have held that 38 months’ detention was legitimate, having regard to the high risk of absconding and the nature and seriousness of the risk of re-offending (R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112).

What is a reasonable period?

The question that has to be answered by the Home Office is whether it is “apparent” that the there can and will be able an effective removal/deportation of the detained within a reasonable period of their continued detention.  Here they may rely on R (Muqtaar) v SSHD [2012] EWCA Civ 1270; [2013] 1 WLR 649 the Court of Appeal stressed the importance of the word “apparent” and emphasised that “it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain”[36]. The Court in Muqtaar upheld a decision that a period of 41 months detention was lawful, including during a period when a rule 39 indication from the Earth had been in force, rejecting the submission that that for continued detention to be lawful it was necessary for the Secretary of State to identify the timescale within which removal could be effected: “although it was not possible to say when the ECtHR proceedings would be concluded, there was none the less a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances” [37-38].

However, each case is different and where the person is not deemed a risk of being an absconder, or is likely to reoffend, or be a threat to the public especially where there is a history of compliance with bail requirements then the argument of the Home Office gets weaker.



How to apply for Bail?

A detained person  may apply firstly  to the Home Secretary which is known as Secretary of State bail  by way of filling in a  Form Bail401. If this is refused then a detained person may    to the First-tier Tribunal , this by way of Form B1.

A detained person can apply for bail every 28days, but it can be sooner than 28days if there is a change of circumstances since the last bail application.

Where a person has been in custody for 4months and no application has been made, then the issue of bail will be referred to the First-tier Tribunal who will decide if bail is to be granted.

We can help you deal with the issue of bail we have a history experience of making bail applications not only in the Immigration Tribunals but also the Criminal courts as well.

Unable to apply for bail due to financial hardship?

If you or your loved ones cannot afford to pay or a fund a bail application or you need extra support, then there is support available. Firstly, we may consider doing the bail application on a pro bono basis if the case is exceptional and we would ask you to email us only once on [email protected]. We would consider a case exceptional where a person has been in custody for more than 12months and has no one family or support structure in place.  or you may wish to contact the charity Bail for Immigration Detainees on , 020 7456 9750 and they may be in a position to assist.

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