Immigration Tribunal bail is when a Judge at the Immigration Tribunal grants bail following an application by a person in detention. The outcome is decided at a hearing after the Judge hears from both the Home Office and the person detained and/or their representative.
In 2021, 10% of people released from detention were released on Immigration Tribunal Bail. In 2022, 21% and in 2023, 28%.
The detained person or their legal representative completes the B1 bail application form and submits it by fax to the bail clerk at the appropriate hearing centre. Regional immigration tribunal hearing centres handle applications for specific detention centres and prisons.
The hearing centre will notify the applicant and the Home Office of the hearing date and time, usually within the next 1-2 weeks.
The applicant or their legal representative must then arrange for any supporting documents to reach the hearing centre before the hearing, and for anyone named in the application as a financial condition supporter/surety or as offering accommodation or acting to attend the hearing in person. Failure to attend may damage the application for release.
On the day before the hearing, by 2pm at the latest, the Home Office must serve a document called the “bail summary” on the applicant and their legal representative. This contains the arguments that the Home Office Presenting Officer (HOPO), acting for the Home Office, will make against release on bail at the bail hearing the following day. The applicant should read the bail summary and identify any factual mistakes so they can bring these to the attention of their legal representative, or to the judge if they are unrepresented.
Bail hearings for people held in detention centres are usually heard by videolink. There is no right to an in person hearing, this is at the discretion of the tribunal.
Applicants or their legal representative may apply to the First-Tier Tribunal (Immigration and Asylum Chamber) (FTTIAC) for a hearing in person in exceptional circumstances, for example if the person has been detained for a very long period and it is thought that it could be useful for the judge to see them in person.
During an online bail hearing the applicant sits in a video link suite in the detention centre, while their legal representative (if they have one), the interpreter (if booked), any financial condition supports or accommodation providers, and any family members, also attend online via a platform named ‘CVP.’ Applicants get around ten minutes for confidential discussion with their solicitor or barrister by video link before the hearing.
During in person bail hearings, the person detained is required to appear in court. Their legal representative, financial condition supporters, the representative for the Home Office and the Judge will also be present in court.
People detained in the prison estate may also have their application heard by video link. If the prison has no video link suite they will be taken by escort to a hearing centre for an in-person hearing. Shortages of secure hearing rooms in the HM Courts & Tribunal Service estate in the London area, and the low priority given by the Home Office to using escorting resources for court hearings, can result in delays in getting bail applications heard or failure to escort to hearings on the day.
Attending court, whether in person or via video link, is a stressful experience, often aggravated by long periods in detention and previous failures to get release on bail. The psychological impact of detention may affect confidence and the ability to recall details and facts. The Home Office Presenting Officer (HOPO) can cross question the applicant, and regardless of the facts in the case will oppose release by arguing that the applicant cannot be trusted, and is likely to pose a risk to the public if released. All of this may happen through an interpreter, and is mediated via a TV screen. The hearing may be over very quickly, and it is quite common for applicants to feel that they have not been allowed to have their say.
The focus of any bail hearing is on whether or not the applicant will abscond if released, meaning that they are no longer in contact with the Home Office, and whether or not any risk on release (for example of re-offending) outweighs the presumption of liberty. Home Office assertions of absconding risk and offending risk are rarely backed up with evidence, and need to be challenged if the applicant is to have a chance of release. The applicant will need to explain how they will keep in touch with the Home Office, why they will not offend again, and - if they have children for whom they were caring before they were detained - why their release is essential for their children.
Judges should consider whether to grant bail in line with the considerations set out in Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber). This is a helpful document which enables people in detention to understand how the Judge will approach the bail application.
Guidance on Immigration Bail for Judges of the First-tier Tribunal, current version dated 1st March 2023, available at:
The judge will give their decision immediately at the end of the hearing, followed by a ‘Grant of Release’ document, a grant of “Bail in Principle” or a ‘Refusal of Bail’ notice. If granted bail, the document will set out their reporting requirements, their bail address, and any other conditions of bail.
If the applicant is granted bail, they will be released from the detention centre or prison where they are being held that same day, unless an electronic monitoring device (a tag) is a condition of bail, in which case the Home Office may detain them for a further 72 hours so as to fit the tag. If they will be living in Home Office accommodation on release they will be given a travel warrant for travel to this address, otherwise they must make and pay for their own travel arrangements to get to private accommodation. They may arrive late at night if the accommodation is far from where they were detained. Visitors can help by informing the accommodation manager on site of a late arrival. People should be released from detention with their property and with a summary of their medical notes.
Increasingly, a Judge may grant conditional bail or “bail in principle.” This is usually considered appropriate if an individual cannot be released immediately for example, where they do not yet have a suitable address to go to or where their probation officer (if they are detained on completion of a custodial sentence) has not yet approved their bail address and immediate release might place them in breach of their licence conditions. The grant of bail in principle may state something like, “to be released when an address approved by Probation.” Where bail in principle is granted, it is possible for individuals to be detained for a long time afterwards due to delays with securing a release address.
Immigration Judges do sometimes grant bail even in the absence of an approved release address on the assumption that (a) landlords will give permission to live in a property and (b) (where a person is subject to a licence) a probation officer will approve the bail address (Paragrah 68, Guidance on Immigration Bail for First-Tier Tribunal Judges, 2023). However, individuals who are subject to a licence should be aware that if the address is not approved, they may technically be in breach of their licence conditions even if their release is ordered by an Immigration Judge. It will be up to the individual if they wish to be released regardless. They should be advised to keep in frequent contact with their probation officer to avoid being in breach of their licence and any enforcement action taken as a result. It is unlikely that probation will take enforcement action if an Immigration Judge has ordered release notwithstanding the terms of the licence but this is not guaranteed.
Following the bail hearing, the Judge will usually transfer “management of bail” to the Home Office unless there are good reasons not to. This means that the Home Office, not the Tribunal, has the power to amend, remove or add bail conditions of their own volition or on application by the person on bail. If management of bail is transferred to the Home Office, individuals should be advised to read their Bail 201 form carefully on release as it is possible that the bail conditions granted by the Tribunal may have been amended by the Home Office.
It is not uncommon for bail applications to be withdrawn, either before the hearing or at some point during the hearing. This may be on the advice of the judge, or on the advice of the legal representative. Judges may advise withdrawal if a surety listed on the application form has not been able to attend the hearing, and without a surety they are not minded to grant bail, if the applicant has not received a bail summary from the Home Office, or if an unrepresented person has submitted an incomplete application.
This example is taken from a 2012 BID report which highlights the challenges for people who lodge a bail application themselves (and may not fully understand the role of sureties):
“The applicant claimed to have many sureties (parent, brothers, partner), in the country, but none could come to the hearing. His partner was in hospital. (The) judge advised him to withdraw the application as he would not be granted bail without proof of where he would live and sureties to account for him.” [1]
Legal advisors may advise withdrawal if the conduct of the hearing raises concerns about fairness, for example if it becomes apparent that the judge has not read important supporting documents.
The Home Office will use the fact that someone has been refused bail in the past to argue against release in subsequent bail applications, and may use judges’ comments from the Refusal of Bail notice. A withdrawal may therefore cause fewer problems for the applicant, if refusal seems obvious.
BID, (2012), The Liberty Deficit: long-term detention & bail decision-making. A study of immigration bail hearings in the First Tier Tribunal. p.34 https://hubble-live-assets.s3.amazonaws.com/biduk/redactor2_assets/files/166/The_Liberty_Deficit.pdf
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 ). This is provided by contracted firms through the .
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 ) 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.
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.
In 2021, 76% of people leaving detention were released on Secretary of State bail. In 2022, 56% and in 2023, 34%.