An important new report from Bail for Immigration Detainees (BID), A nice judge on a good day: immigration bail and the right to liberty, reveals the systemic failures within the Home Office and the legal system which consign detainees to oblivion for months or years.

Liberty is regularly proclaimed as one of the most important of our fundamental human rights. But the right to liberty does not appear to be taken so seriously for those without British passports. This casual attitude towards the liberty of foreigners is manifested by the refusal by successive governments over the past forty years to legislate for a maximum period of immigration detention, and the failure to ensure other safeguards, such as automatic judicial oversight of detention and access to legal representation. There are few votes in reform of immigration detention, and the attitude seems to be that those whose right to be in the country is in question have no right to liberty.

In this situation, BID, a small charity set up twelve years ago, has worked to secure the release of those held in immigration detention – by providing representation on bail applications to particularly vulnerable detainees, by training large numbers of detainees so that they can make their own bail applications, and by campaigning, lobbying and reporting on the issues. The increased public awareness of immigration detention and in particular the high-profile campaign against the detention of children are in no small part due to BID’s educational activities.

For this report, BID focussed on the legal process of getting bail, analysing sixty-five bail applications at four hearing centres in and around London and Birmingham. On average, detainees had spent over sixteen months in immigration detention, most of them following a decision to deport them for criminal activity (generally minor, and frequently involving the use of false documents to obtain entry or work). Eleven had children in the UK, some of whom were British. Common to many of the cases was arrival in the UK as a young member of a refugee family, followed by problems in teenage years leading to crime and the prospect of deportation and separation from family members here.

Importance of legal representation

The report’s first finding is what a difference representation makes. While over half of represented applicants in the sample were granted bail (excluding a small number who withdrew their applications), the proportion of unrepresented applicants who were successful was less than a fifth. The percentage of successful applications overall has fallen from twenty-five per cent in 2006 to eighteen per cent in 2009 and in the first quarter of 2010.

In 1999, the government made provision for automatic bail hearings for all immigration detainees after seven and thirty-five days in detention. This meant judicial scrutiny of detention even where the detainee did not request it, to ensure that only those who really needed to be locked up were deprived of their liberty, and for as short a period as possible. But the provision was never brought into force, and was quietly repealed in 2002. This left thousands of immigration detainees languishing in detention, unaware of their right to apply for bail, ignorant of the procedures, or unable to obtain legal help in making an application. Obstacles to access to justice, difficult enough in the community, assume insurmountable proportions in detention. The difficulties are exacerbated by frequent moves around the detention estate, for no apparent reason, as detainees who have legal representatives frequently lose them when they are transferred hundreds of miles away.

Apart from lack of legal representation, other obstacles to bail identified in the report include the widespread misapprehension, often shared by detainees and immigration judges, that sureties must be provided before bail will be granted; the barriers arising from video link hearings, such as applicants’ inability to see and hear the proceedings clearly (nearly all hearings are now by video link from the removal centre); leaving large parts of the hearing uninterpreted; Home Office failure to serve vital documents in time, such as their objections to bail (known as ‘bail summaries’); widespread inaccuracies, errors and prejudicial remarks in these documents and giving applicants inadequate opportunity to challenge them.

Inadequate objections to bail

The report devotes several pages to the most common reasons given by the Home Office for the refusal of bail, and demonstrates how flimsy, contentious or unfair many of these reasons are. One example cited is the objection that a bail address provided by the Home Office (eg hostel accommodation for refused asylum seekers) demonstrates an applicant’s lack of community ties, showing that he is likely to abscond – a wholly speculative train of deduction, but one of the standard reasons used by the Home Office in objecting to bail, cut and pasted for use against hundreds of applicants, regardless of their personal integrity or absconding history.

The research reveals that the Home Office uses prolonged detention to ‘induce’ people to return to countries where conditions are such that there are no enforced returns, including Zimbabwe, Somalia, Iraq (at the time of the research) and Sri Lanka. Those seeking to challenge their continued detention are accused of ‘frustrating removal’, which justifies their remaining in detention for months while their legal challenge proceeds.

Judicial failings

But immigration judges also come in for criticism, for failing too often to ensure a fair hearing for applicants. Many did not see as problematic the late service of Home Office objections to bail, or Home Office failure to provide evidence in support of contentious allegations at the hearing, both of which deprive applicants of a proper opportunity to challenge their detention – apparently forgetting that deprivation of liberty must be rigorously justified. Some judges required applicants to prove matters which were not challenged by the Home Office. Some failed to give applicants a chance to address Home Office bail objections. In around a third of cases ‘inappropriate’ friendliness was observed between immigration judges and Home Office presenting officers (civil servants who represent the Home Office). Too often, particularly where applicants were unrepresented, judges failed to consider the length and impact of detention, and reasons for refusing bail were too often confusing, contradictory or unjustified by the evidence.

The unsurprising conclusion from this research is that unfair decision-making on bail for immigration detainees can easily go unchecked because of inadequate safeguards. The situation is exacerbated by the lack of current guidance notes for immigration judges following the withdrawal of guidance promulgated in 2003. New guidance has been promised for summer 2010 but has not yet appeared. But as BID concludes, over and above improved safeguards, ‘a fundamental review is needed on how judicial and government departments engage with the bail process’. To assist in that review, the report ends with a series of recommendations, from prompt provision of information and a right to publicly funded legal advice to detainees, to the return and implementation of automatic bail hearings and a statutory time limit of twenty-eight days on immigration detention. For if the right to liberty is to mean anything for foreign nationals, it must be pursued seriously and with a sense of urgency currently lacking both in the Home Office and in the immigration judiciary.

Related links

Bail for Immigration Detainees (BID)

Download a copy of A nice judge on a good day: immigration bail and the right to liberty here (pdf file, 420kb)