Bail addresses and Home Office accommodation

Tribunal judges will not usually grant immigration bail if the applicant cannot provide the court with a release address (although it is possible in certain circumstances as explained above). A grant of release on Secretary of State bail is also more difficult without a release address, although not the deciding factor.

Anyone who is offered private accommodation as their release address (from friends, family or a private landlord) will need to provide the tribunal with documentary evidence of ownership or written permission from a landlord to have a tenant in advance, and ideally they should be in attendance at the bail hearing in person with these documents. If applying for Secretary of State bail they should include details of this address in their application.

If the person in detention does not have access to private accommodation, they can apply to the Home Office for different types of accommodation based on their immigration case/history. Asylum seekers and refused asylum seekers can apply for accommodation under section 95 and s.4(2) of the Immigration and Asylum Act 1999 using Form ASF1. If an individual (who is not an asylum seeker or a failed asylum seeker) is likely to be destitute on release, they can request Schedule 10 accommodation directly from the Home Office by completing and sending off Form 409. Those who have criminal convictions can request Schedule 10 accommodation on their Bail 401 form however, the Home Office has been known to request that a form 409 form is also completed.

Asylum applicants who have not yet received a decision from the Home Office on their asylum claim can only apply for accommodation after they are released from detention. However, they can call Migrant Help to request urgent emergency section 98 accommodation in the meantime in order to avoid destitution.

People who have been refused asylum can apply for accommodation from within detention, however, they need to show that they have been granted conditional bail/bail in principle first. This can be a circular and lengthy process and individuals may wish to seek advice on an unlawful detention claim or Judicial Review if they are not released within a reasonable period of time.

People detained should be aware that their request for Schedule 10 accommodation may be interpreted by the Home Office as illustrating a lack of ties to their community, friends or family. This might conflict with the details of an Article 8 (private and family life) claim they wish to pursue. Such individuals, when making the application, may wish to write down why they cannot be accommodated elsewhere. However, they should seek legal advice on this beforehand.

Those who need accommodation should complete the relevant form and send it to Migrant Help. This can be done with assistance from more experienced visitors or your casework team if your group has one. An Immigration Officer in detention may also be able to support with completing the relevant forms. Ordinarily, applications for accommodation do not constitute legal advice. However, changes to the bail 409 form (for Schedule 10 support) mean that this is a grey area. For more information on who can provide legal advice visit Who can give immigration legal advice?

Resource Tip: Refugee Action and Asylum Support Appeals Project Guidance for more information on assisting people to complete and submit Bail 409 forms.

Home Office accommodation is provided on a no-choice basis in any location in England or Wales.

It is commonplace for there to be delays to release from detention due to a delay by the Home Office in finding appropriate accommodation and delays by probation services in approving proposed addresses. AVID visitor groups have reported that this is an ongoing and escalating problem, seeing increased delays and an increase of people being released into homelessness.

Accommodation issues are not an immigration matter so are not within the scope of immigration legal aid. Those who face extreme delays in getting Home Office bail accommodation should be referred to a public law solicitor, preferably one with a housing or community care contract as well. The legal advice providers operating in detention centres are not funded to pursue accommodation application delays under their immigration legal aid contracts.

Applications for Home Office accommodation with an offending history

It is much more complicated for the Home Office to place people in detention who have a past criminal record or who have been detained after their prison sentence in accommodation around the UK intended primarily for asylum seekers. For such individuals, applications for Home Office accommodation can take months or even more than a year. Legal challenges to the delay in providing accommodation have been successful [1] but this has not prevented further delays in other applications.

If the person you visit is experiencing delays of more than a couple of months in getting a bail address to enable them to apply for release they may wish to speak to Bail for Immigration Detainees about specialist legal work on their behalf, or a public law solicitor.

Bail addresses: still on licence when applying for immigration bail?

Any person in detention who is still within the period of their HMPPS release licence after serving a custodial sentence needs to get their proposed bail address approved by their probation officer. This applies both to private addresses and to Home Office bail accommodation. Getting probation approval may take some weeks.

Immigration judges can choose not to grant bail to an address that is not approved by probation, as this would put the individual in breach of their HMPPS (Her Majesty’s Prison and Probation Service) licence and risk recall to prison. However, as set out above, Judges can assume that an address will be approved and order immediate release. The individual will need to consider their options before agreeing to be released in these circumstances as they could risk being in breach of their licence. They should, in all circumstances, communicate frequently and clearly with their Probation Officer about their circumstances and options to avoid enforcement action for breaching their licence.

A small proportion of people still on licence are required, as a condition of their licence, to live in HMPPS Approved Premises if they are not in custody. If this is the case, they should seek legal advice in order to minimise delays. They can also contact their Probation Officer to ensure that an Approved Premises is found in time before their bail hearing or after a grant of bail in principle.

Bail for Immigration Detainees has a range of factsheets on this and other issues, you can find out more at their website www.biduk.org including Getting probation approval for your immigration bail address (private address) and Information for immigration detainees held in prisons.

Mandatory electronic monitoring for those facing deportation

People in detention who have previous criminal convictions or who have engaged in behaviour considered “not conducive to the public good” may be liable to deportation. (see Removal, Return, and Deportation for the difference between being liable to removal and liable to deportation.)

If someone is liable to deportation (this includes when the Home Office is simply considering whether to deport them), paragraph 2(3) of Schedule 10 to the Immigration Act 2016 requires the imposition of electronic monitoring except where that would be impractical or contrary to an individual’s Convention rights. A Judge has no power to disallow electronic monitoring conditions in respect of those liable to deportation.

If a person detained has health conditions or other reasons as to why they should not be fitted with an electronic monitoring device, they should put this in writing to the Home Office, either in their bail application form or after release, and explain why it would be impractical or contrary to their Convention rights. If the Home Office refuses to remove the electronic monitoring condition notwithstanding the representations, individuals should seek the advice of a public law solicitor in relation to challenging the refusal via judicial review.

Electronic monitoring is a highly intrusive bail condition that causes practical and emotional hardship. BID has documented this here and here.

1. See R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin)