A nice judge on a good day…

The latest report by Bail for Immigration Detainees launched earlier this year A nice judge on a good day: immigration bail and the right to liberty calls for an end to the current system that sees people detained indefinitely.

Shortcomings

BID’s report highlights the failure of the Home Office, the immigration and asylum tribunals, and agencies of the criminal justice system to follow their existing guidelines and cooperate effectively on immigration cases. This is leading to increasing numbers of individuals being warehoused in immigration detention for months and years in potentially unlawful indefinite detention.

Lack of legal representation combined with poor UKBA case management also contributes to low levels of release on bail. Between January and December 2009, a total of 10,076 bail applications were heard in the Asylum & Immigration Tribunal (now FTTIAC), and Ministry of Justice figures show that around 18 percent of bail applications are granted currently. It is common for detainees released on bail to have made repeated bail applications over several months before their eventual release.

BID’s research shows that un-evidenced assertions of absconding risk are routinely made by the UK Border Agency to oppose detainees’ release on bail, yet absconding risks are likely to be low, and community-based alternatives to detention remain underused.

In bail hearings it was evident that there was an endemic failure on the part of immigration judges to provide evidence in their written reasons for refusing bail. Not only was it unclear upon what basis many decisions had been made, but it was also unclear why many judges had chosen to prefer evidence presented by the Home Office despite evidence presented by the applicant which directly countered it.

Of fourteen unrepresented bail hearings where an interpreter was used, BID observed that in 28 percent of cases the judge did not establish that the interpreter and applicant understood each other before the hearing started, and in half the cases not all dialogue was interpreted for the applicant.

The diversity of practice on the part of judges uncovered by BID’s research is exacerbated by the absence of any publicly available and up to date guidance to immigration judges on the conduct of bail hearings to reflect current court room conditions, for example, the almost universal use of video link in bail hearings.

Magnitude of the problem

Around 30,000 people every year are detained for the purposes of immigration control in the UK in eleven Immigration Removal Centres, as well as in prisons and police cells. Asylum seekers and refused asylum seekers can be detained at any stage of their application, though usually on entry to the UK or at the point of claiming asylum, or when their claim has been refused.

Overstayers or illegal entrants who have been apprehended may be held in detention while their case is examined and pending removal, as can foreign national ex-offenders who have completed their custodial sentence and are subject to deportation action. Around 60 percent of immigration detainees have claimed asylum at some stage.

There is no statutory time limit to immigration detention and currently no automatic access to the courts for detainees, many of whom have no legal representation.

The UK, along with Denmark, has opted out of the European Returns Directive that allows for immigration detention for up to eighteen months. BID is aware of increasing numbers of immigration detainees who have been held for two or three years before either being removed to their country of origin, released on bail, or eventually being granted refugee status.

Around 10 percent of detainees at any one time have been held for over 12 months, and these are overwhelmingly ex-offenders subject to deportation action as a result of a range of crimes that include document-related offences of fraud and forgery, offences under various Immigration Acts, and violent or drug related offences.

The so-called ‘automatic’ deportation provisions – introduced in the UK Borders Act (2007) and in force since August 2008 – removed the Secretary of State’s discretion over whether to pursue deportation in respect of foreign nationals who are convicted in the UK and sentenced to imprisonment for a period of 12 months or longer.

Foreign national ex-offenders, who are often long term residents in the UK, can face particular difficulties in getting travel documents, or may have extensive family ties in the UK that give rise to human rights challenges to their deportation. Others may have no immediate prospect of being deported due to no enforced returns to their country of origin at the time of their detention.

Despite these barriers to removal, ex-offenders do not have access to documents that could help them argue their eligibility for bail in front of an immigration judge as they are generally not prioritised by the Probation Service for the usual pre-release programmes and assessments of their risk of re-offending.

Recommendations

BID would like to see the new government introduce:

1. automatic bail hearings;
2. time limited detention;
3. an evidence-based risk assessment processes for immigration
detainees seeking release and
4. a requirement for documentary evidence to support
contested facts in bail applications.
5. amendments to the statutory bail provisions to ensure that refusal of immigration bail can no longer be used as an extension of the criminal justice system and an expansion of the bail jurisdiction to allow immigration judges to hear arguments that touch on the legality of detention.

Copies of BID’s report “A nice judge on a good day: immigration bail and the right to liberty” can be obtained via adeline@biduk.org

For the full version of this article see A Nice Judge? JCWI’s Autumn Bulletin by Dr Adeline Trude.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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