14.8 Immigration Bail

Where a detainee is held under immigration powers by the state, he or she has the right to apply to be released on bail to the First-tier Tribunal. Previously, if a detainee had no place to stay on release then they could ask to be accommodated, under section 4(1)(c) of the Immigration and Asylum Act 1999. This has mostly been replaced by the Immigration Act 2016, which makes provision for accommodation under paragraph 9, Schedule 10. The Secretary of State has a policy to provide accommodation to any detainee who needs it, and a duty to deal with any application made for such accommodation fairly and expeditiously. As commentators have noted the provision of this accommodation is expensive, requires triangulation between several different government agencies, and there is little availability

Bail for Immigration Detainees (BID) reports that only two of its clients have secured accommodation under the new Immigration Act system since the beginning of the year. The charity had explored the minutiae of the previous excruciating process in the report ‘No place to go’.

The case of R (Baraka) v SSHD [2018] EWHC 1549 (Admin) demonstrates the difficulties which detainees had obtaining a bail address under section 4(1)(c), even before the changes. At the time of the hearing of his judicial review claim, over 13 months later, no address had been provided by the Home Office. Bail cannot be granted where no address is given for release. This release process can be contrasted with that for domestic prisoners — including those convicted of the most serious crimes — as set out in the Criminal Justice (Sentencing) (Licence Conditions) Order 2015 (SI 2015 No. 337) which requires a standard condition to be included in licences by prison governors prior to release requiring the offender to:

(e) reside permanently at an address approved by the supervising officer and obtain the prior permission of the supervising officer for any stay of one or more nights at a different address.

In the instant case, Mr Baraka’s claim was dismissed, the Secretary of State having been found to have taken reasonable steps to attempt to procure the required accommodation, and having acted rationally and reasonably in doing so.

See: ‘Migrants detained indefinitely or made homeless by new immigration bail system’ (https://www.freemovement.org.uk/immigration-bail-accommodation/)