Secretary of State Bail

Secretary of State bail allows a person to be released into the community whilst they are still liable to be detained. It is granted by the Home Office either of their volition or where an individual applies using a particular form (form Bail 401). Someone in detention should be given a Bail 401 form by detention centre staff on request. The form can also be accessed here.

The decision to grant Secretary of State bail is made by the Home Office, without a hearing, on consideration of the papers (namely the bail form and any supporting documents, such as medical records, supporting letters and evidence that they can live at a particular address). A decision should be received within 10 days of making the application.

If an individual applies for Secretary of State bail, they should try to provide the Home Office with details of a release address; without somewhere to live, a grant of release on Secretary of State bail can be lower because the Home Office will not be sure where to find that person. However, a lack of release address is not fatal to a bail application and, if a person in detention has nowhere to go and will become destitute on release, they can apply to the Home Office for a release address.

Anyone in detention who is on a HMPPS licence following a prison sentence must satisfy HMPPS that their release address is acceptable, a process which can take some weeks. This can complicate an application for release. In order to avoid complications and delay, people in detention should be advised to liaise with their Probation Officers to ensure that their release address is compatible with their licence before and whilst their application for Secretary of State bail is pending. If this is not possible, the Home Office may contact the Probation Officer directly. Individuals applying for Secretary of State bail may also provide details of any financial condition supporters, formerly known as “sureties”, on the Bail 401 form.

If the Home Office decides to grant bail to an individual, they will be released with a Form 201 which sets out any bail conditions. Bail conditions might include reporting to the Home Office at a reporting centre or a police station on a regular basis (sometimes referred to as ‘signing’), and living at an address known to the Home Office. A financial condition can also be imposed whereby a “financial condition supporter” pledges a sum of money to assure the Home Office that the bailee will not abscond. Those liable to deportation are also required to comply with 24-hour electronic monitoring/“tagging” unless the Home Office decides otherwise.

Anyone who is granted Secretary of State bail may be re-detained by the Home Office at any time. Missing a reporting event, changing address without notifying the Home Office, or being stopped by the police, may trigger detention.

The Home Office uses Secretary of State bail to release when it has made the decision not to maintain detention for whatever reason. It is a quick means of release for the Home Office. Visitors do see cases where individuals, including very ill people, are released on Secretary of State bail from detention into homelessness - without any known accommodation or financial support - just with reporting requirements but no means to meet these requirements.

Where bail applications are not successful, an individual may draw a response from the Home Office containing additional information about progress in the case, or information the Home Office holds on that person which can be challenged if incorrect. Secretary of State bail applications can be viewed by legal representatives more as a strategic tool than a release application per se. For example, in unlawful detention proceedings, solicitors may be able to argue that they gave the Home Office the opportunity to release the person detained but that it unreasonably chose not to by refusing bail. It should be noted however, that due to limited capacity and in the interests of time and saving costs, immigration solicitors are unlikely to pursue Secretary of State bail applications over Immigration Tribunal bail applications.

With the limited amount of legal aid available, it can be difficult to get a solicitor to apply for Secretary of State bail. In such cases, the detained person can make an application themselves but should (if possible) first ask their solicitor if there is any reason why they should not do so at that time. The application should be made to the Home Office through an Immigration Officer at the relevant detention centre.

• See Bail with or without a legal advisor.

In 2021, 76% of people leaving detention were released on Secretary of State bail. In 2022, 56% and in 2023, 34%.