The UK immigration detention estate is one of the largest in Europe and every year more than 25,000 people are detained in immigration removal centres. The length of detention is indefinite – they may be detained weeks, months or years as they wait for their cases to be processed. Immigration detainees have the right to apply for bail to obtain liberty. This is precious, even though conditional – with reporting requirements and no right to work or study. Concern about many aspects of the bail system experienced particularly by detainees at Campsfield House Immigration Removal centre near Oxford, led members of the Close Campsfield Campaign and the Oxford office of Bail for Immigration Detainees (BiD)  to undertake a systematic study. The Bail Observation Project surveyed 115 hearings in four different courts. We found evidence of bias and inconsistency of practice in the courts and produced a report,Immigration Bail Hearings:  A Travesty of Justice? which concluded that the system is fundamentally flawed.

At the time of the study there were no guidance notes in force for immigration judges, and we recommended that new notes should be issued as an urgent priority. In July the Tribunals Judiciary published Bail Guidance for Immigration Judges, Presidential Guidance Notes No 1 of 2011. The Bail Observation Project welcomed these notes, and although not binding, they provide a useful benchmark for judges and others concerned about the process of immigration bail hearings. Will they, however, make a difference?

The right to liberty

Following our survey, we recommended that judges demonstrate that they approach each bail hearing with a presumption of liberty.  The new guidance affirms the fundamental right to liberty for all, whether British citizens or not, but goes on to say that a person may be legitimately deprived of their liberty when ‘the immigration authorities are investigating whether a person who is not a citizen is entitled to enter or stay in the United Kingdom, or while a decision has been made to remove a person from the country’.  Detention has an administrative function.  Yet, in contrast to criminal proceedings, ‘there is no statutory presumption in favour of release in immigration detention cases’. The notes go on to say that nevertheless ‘bail should not be refused unless there is a good reason to do so’.  We called for a practice direction putting the burden of proof on the Home Office to demonstrate evidence of imminent removal, and to show that all alternatives to detention had been considered.  The new guidance contains several paragraphs relating to the burden of proof, including ‘it is for the immigration authorities to justify the need for detention’, and ‘bail should not be refused unless there is good reason to do so, and it is for the respondent to show what those reasons are’.

However the notes add that attempts to apply strict burdens of proof may be misleading, and ‘either party may need to provide relevant evidence to support their case’. A common reason for refusing bail is that removal is said to be imminent. The notes do not define what is meant by ‘imminent removal’ or determine when removal is imminent.

We had been disturbed to observe how long some detainees had been held, and were encouraged to see guidance on the length of detention.  Although the 2011 guidance says that there is no predetermined limit, it goes on to give a timescale: ‘it is generally accepted that detention for three months would be considered a substantial period of time and six months a long period.  Imperative considerations of public safety may be necessary to justify detention in excess of six months’. These timescales may provide a useful yardstick.

We believe that both sureties and members of the public should be admitted to bail hearings and the new guidance has provision for this, with the exception of cases where there are concerns of justice or privacy. It would have been useful to have had clearer guidance on the provision of appropriate interpretation. The only reference is in Annex 6 in relation to video link hearings where it is advised that time should be given for translation if needed.

Despite long-standing concerns about the use of video link for immigration bail hearings, the guidelines suggest that this practice will now be standard across the board. The amount of time allowed for consultation between the applicants and their legal representative, where available, is limited to ten minutes, which is too short.

We found many difficulties with the bail summary – the document which outlines the Home Office case for refusing the application for bail.  It was not always produced by the time stipulated and often contained errors. The new guidance has brought back the time of making the summary available to the applicant from 2.00 pm to noon of the day before the hearing. However it is suggested that, in the absence of the bail summary, ‘the judge may be able to infer the reasons for detention from other available information’. The source of such information is not clear, and applicants would not have the opportunity to see information in advance of the hearing. This is a cause for real concern. We believe that in the absence of a lawyer to represent the applicant, the judge should question the bail summary. The guidance does not address this. There appears no longer to be an automatic right to bail in the absence of a bail summary.

Accountability, scrutiny and monitoring

We recommended that there should be an independent written record of bail proceedings and other hearings in immigration courts, available to the public/interested parties. The new guidance says ‘that immigration judges will keep a clear record of proceedings’. It is critical that decisions must be legible, and reasons for refusal given in sufficient detail to be clearly understood.

We also asked that the training of Immigration Judges should be reviewed to ensure that weight is given to independent medical evidence, the effects of detention on the mental health of detainees, and on the well-being of their families. Familiarisation with current conditions in the country of origin of applicants should be ongoing. The guidance refers to family life and separation from young children, but does not address the other matters.

These new guidance notes are to be welcomed as an up-to-date and publicly available framework for immigration judges. The fundamental right to liberty for all is reiterated and some limits suggested for the length of detention. We are dismayed however that video link is now regarded as standard. We are disappointed that so many of the recommendations in the BiD report published last year A Nice Judge on a Good Day: Immigration Bail and the Right to Liberty, and in our own report, are not addressed. Many of these are concerned with the conduct of the hearing, for example, giving time for applicants to present their case, ensuring appropriate interpretation and the time required, the role and responsibility of the judge in questioning the bail summary in the absence of legal representation to the applicant, and the lack of guidance on maintaining an independent typescript record of proceedings.

As the consultation on the Bail Guidance comes to an end this month, we hope that there will be an ongoing dialogue for all who have a concern for immigration detainees.  The law plays an important role, but a major obstacle remains in attitudes to asylum seekers and immigrants , and a pervasive culture of disbelief.  Last year, Nick Clegg was reported in the Guardian as saying that the asylum system was a source of shame. There remains a fundamental question about whether it is right to detain people in this way, when it would not be lawful for British citizens.

Bridget Walker, 12 December 2011