Schedule 5 - Immigration bail

Part of Immigration Bill – in a Public Bill Committee at 3:30 pm on 3rd November 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 3:30 pm, 3rd November 2015

There are a number of amendments grouped together for obvious reasons. In my view, amendment 199 probably stands slightly apart from the others, being of a different nature, and I will deal with that first.

Amendment 199 would make provision for automatic bail hearings after 28 days and every 28 days thereafter. Bail hearings in immigration cases have been a source of considerable concern on both sides of the House and outside the House. There is concern about how bail hearings work and how effective they are, and there have been a number of questions as to what changes should be made.

The amendment would provide for automatic bail hearings in the way I have described. The starting point is perhaps obvious: unlike in the criminal justice system, there is no automatic judicial oversight of a decision to detain or a decision to continue to detain. Challenges to detention must be instigated by the detainee, and the main mechanism for doing so is by asking for a bail hearing. We are concerned with two types of bail: chief immigration officer bail and bail from the first-tier tribunal. The former, of course, does not involve a court, and detainees have no chance to put their case to anyone. For bail from the first-tier tribunal, an individual must have accommodation. People who do not have a private address to which to be bailed can currently apply for an address under section 4 of the 1999 Act, which will be removed by the current Bill—we will address that amendment in due course.

As hon. and right hon. Members know, the all-party group on migration has produced a report on immigration detention, which is significant not just because the APPG carried out an investigation and produced a report but because the recommendations were agreed by the House of Commons on, I think, 10 September. The inquiry panel included a former Cabinet Minister, a former chief inspector of prisons and a former Law Lord, and it considered evidence over eight months. The APPG recommended, and the House of Commons agreed,

“that the Government should introduce a robust system for reviewing the decision to detain early in the period of detention. This system might take, for example, the form of automatic bail hearings, a statutory presumption that detention is to be used exceptionally and for the shortest possible time, or judicial oversight”.

The APPG found that the mechanism for asking for bail hearings is not currently working. Not only do detainees struggle to get legal support but bail hearings also appear to operate in a way that creates a presumption against release.

The APPG reported that it can take a very long time for accommodation to be provided under section 4 of the 1999 Act—Bail for Immigration Detainees has reported that it takes up to 72 weeks in some cases. During that time, people are unable to challenge their detention by application to the first-tier tribunal, and legal advice is particularly hard to come by. The chief inspector of borders and immigration has raised concerns about the difficulties that people have in applying for bail, including not knowing how to apply for it. The APPG report mentioned that concern, referencing the joint inspection by the chief inspector of borders and immigration and the chief inspector of prisons, which found that 56% of detainees had made at least one bail application. The joint inspection report stated,

“we were surprised that of those detainees held for more than six months, nine (19%) said they had never made a bail application. This may have been because detainees were unaware of bail processes and/or had poor legal advice.”