New detention powers and ‘immigration bail’ come into force
On 15 January 2018, significant changes to UK immigration detention powers came into force, including the new ‘immigration bail’ status. This replaces the existing legal framework (including temporary admission and temporary release) with a single power of immigration bail.
Most of the provisions for the new immigration bail are set out in Schedule 10 of The Immigration Act 2016.
As outlined in Schedule 10 paragraph 1(1-3), the power to grant bail is bestowed upon both the Secretary of State and the First-tier Tribunal. The difference is that the Secretary of State may grant bail where a person is not detained but is liable to detention, while the Tribunal has no such power.
Extensive policy guidance on the new immigration bail has also been published.
What is the new immigration bail?
This change marks a significant expansion of the UK’s immigration detention powers. For example, a tribunal is no longer authorised to grant bail under any circumstances for 8 days after arrival, or where removal is within 14 days.
Immigration bail can now be imposed even on a person who cannot lawfully be detained. Schedule 10 states that this includes situations where “the Secretary of State is considering whether to make a deportation order against the person under section 5(1) of the Immigration Act 1971”.
It is also specified that “a grant of immigration bail to a person does not prevent the person’s subsequent detention”. In other words, a person can still be detained even if they have previously been granted immigration bail.
Furthermore, Schedule 10(10)(1) states:
An immigration officer or a constable may arrest without warrant a person on immigration bail if the immigration officer or constable—
(a) has reasonable grounds for believing that the person is likely to fail to comply with a bail condition, or
(b) has reasonable grounds for suspecting that the person is failing, or has failed, to comply with a bail condition.
Therefore, someone can be arrested for potential future breaches of immigration bail conditions. The only deciding factor is whether the police officer or immigration official has “reasonable grounds for believing” that this will occur.
If you find yourself detained, it is important you get legal advice as soon as possible. We will be able to advise you on your options for release.
Aileen F. Miller