The New Bail Guidance for Immigration Judges: Will It Make Any Difference?

A note from the Bail Observation Project, September 2011: 

The issuing of up-to-date guidance notes to immigration judges must be an urgent priority.[1]

In our report Immigration Bail Hearings, we recorded our concerns about many aspects of the immigration bail process; the recommendation above was one of a series of recommendations for change. In July, the Tribunals Judiciary published new guidelines (Bail Guidance for Immigration Judges, Presidential Guidance Note No. 1 of 2011). We welcome these new guidance notes as they provide a benchmark for both judges and those concerned with the process of immigration bail hearings.

Independence of Immigration Judges

As lay observers we found evidence of bias in the courts. We recommended that judges should demonstrate that they approach each bail hearing with a presumption of liberty, and treat applicants with respect.

The new guidance affirms the right to liberty for all on UK soil (para 1) but goes on to state there is no statutory presumption of liberty as in criminal cases (para 26). There is no reference to the independence of judges.

Conduct of hearings

We recommended that both sureties and members of the public should be admitted to bail hearings, and that there should be appropriate interpretation as needed.

There is provision for sureties and members of the public to be present in the courtroom in (Annex 6, para 2), with the exception of cases where there are concerns of justice or privacy (main guidelines, para 13). The only reference to interpretation is In Annex 6 relating to video-link hearings, where it is advised that time should be given for translation if needed.

We were concerned that the Home Office sometimes did not carry out the direction of the Immigration Judge; we recommended that there should be a practice direction putting the burden of proof on the Home Office to demonstrate evidence of imminent removal and to show all alternatives to detention had been considered.

The guidance contains several paragraphs relating to the burden of proof:

It is for the immigration authorities to justify the need for detention (para 11);

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 (para 26).

However, the note adds that attempts to apply strict burdens of proof may be misleading and either party may need to provide relevant evidence to support their case (para 27).

 The guidance does not define what is meant by ‘imminent removal’ (we recommended it should).

Bail summary

We recommended that failure to produce the summary (outlining the Home Office’s argument for refusing the application) in advance of the hearing should automatically result in the granting of bail. The 2003 guidance made provision for the automatic right to bail in the absence of bail summary. This appears to have been removed.

In the 2011 guidelines, the time for making the summary available has been brought back from 2.00 pm to noon of the day before the hearing. However, it is suggested that, in the absence of a bail summary, the judge may be able to infer the reasons for detention from other available information (para 6). It is not clear what this information is likely to be, or its source. In such a case it would appear that the applicant would not have the opportunity to see the information in advance of the hearing. This is cause for concern.

We recommended that, in the absence of a lawyer to represent the applicant, the judge should question the bail summary. The guidance does not address this.

We recommended that the Home Office should provide documentary evidence for the case to continue detention. Paragraphs 8 –14, 17 and 21–26 address this issue in some detail.

We were encouraged to see guidance as to the length of detention. This had not been addressed in the 2003 guidance and in our observations we had been disturbed to see the length of time that some detainees had been held. Although the 2011 guidance says that there is no predetermined limit in the immigration laws as to how long the immigration authorities can detain a person pending the making or execution of the relevant immigration decision (para 15), 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 (para 18). These timescales may provide useful benchmarks.

Video-link hearings

The 2003 guidance did not refer to video-link hearings as these had not been established at the time. Since then there have been concerns about their use (see Immigration Bail Hearings by Video Link: A Monitoring Exercise by Bail for Immigration Detainees and the Refugee Council, 2008) and we recommended that they should be discontinued. The 2011 guidelines suggest that, despite these long-standing concerns, video link for bail hearings will now be standard across the board (most bail hearings are conducted by video link, para 66) and Annex 6 sets out the procedure. The amount of time allowed for consultation between the applicant and their legal representative, where available, limited to 10 minutes, is too short.

Accountability, scrutiny, monitoring

We recommended that there should be a written record of proceedings of bail and other hearings in immigration courts, available to the public/interested parties. The decisions on bail applications made by immigration judges should be typed, and include the reasons for refusal or granting of bail, taking into account what was said at the hearing.

The new guidance says that immigration judges will keep a clear record of proceeding. Decisions must be legible and reasons for refusal given in sufficient detail to be clearly understood (para 67).

There is no reference to the monitoring mechanisms mentioned in our recommendations e.g. regular publication of statistics on bail hearings and an accessible and transparent mechanism for complaints.

Guidelines and training for immigration judges

We suggested that the training of immigration judges should be reviewed to ensure that more weight is given than is currently the case to issues such as independent medical evidence, the effects of detention on the mental health of detainees, and on the well-being of their families, and the consequent undesirability of prolonging detention, and to ongoing familiarisation with current conditions in the country of origin of bail applicants.

The guidance refers to the question of family life and separation from young children, but does not address the other matters mentioned above.

Conclusion

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. However, we are dismayed 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: e.g. giving time for the applicant 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 for the applicant, and possibly most critically, the continuing lack of guidance on maintaining an independent written record of proceedings.

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