Immigration Bail Overview

Bail is the temporary release of a person who would otherwise be in detention, usually with conditions attached to that release. Immigration bail in its current form can be viewed as a mechanism for enabling release from administrative detention with conditions attached, designed to ensure contact with the immigration authorities.

Anyone in detention can apply for bail if they have been in the UK for eight days or more. Legal aid is available for bail applications (read more on What is legal aid and what does it cover?). This is provided by contracted firms through the The Legal Aid Agency Detention Duty Advice Scheme in IRCs.

Schedule 10 of the Immigration Act 2016 commenced on January 2018 and replaced the power of the Home Office to grant what was once called “temporary admission” with “Secretary of State bail.”

There are now two main types of bail: Secretary of State bail and Tribunal bail where immigration bail is granted by:

• The Home Office, namely an immigration officer or by a civil servant acting on behalf of the Secretary of State for the Home Department (without a hearing);

• The Immigration Tribunal by an immigration judge of the First-tier Tribunal (Immigration and Asylum Chamber) (with a hearing);

The High Court can also grant bail as a remedy in an application for Judicial Review.

The Illegal Migration Act 2023 (see Essential Immigration and Asylum Law for Visitors) prevents people who are subject to its provisions from being granted First-Tier Tribunal bail in the first 28 days of their detention. These provisions are not yet in force and, at present, the effects of the legislation remain unclear.

Future watch: Look out for whether and/or when provisions of the Illegal Migration Act 2023 relating to detention are likely to come into force.