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The anomaly that is immigration bail

14 October 19

Immigration briefing: immigration bail hearings are subject to a power to override the judge that is unlikely to be found in any other area of law, and is surely unfair

by Kyle Dalziel

Picture the scene. An individual is accused of committing a crime. He is subsequently arrested and taken to court for a bail hearing. The defence solicitor puts forward various arguments in favour of his client’s liberty; the procurator fiscal provides similarly strong arguments against. The judge, having weighed all the arguments, wishes to grant bail and release the accused, but is not able to do so without the consent of the fiscal…

Hard to imagine, isn’t it? How can it be possible for a judge to be subject to the authority of one of the parties they are adjudicating over? How can a hearing be considered fair and balanced if the decision maker needs permission from one of the parties to the proceeding?

This is the anomaly that is immigration bail.

Trump card

The process started with detention. Our client was reporting with the Home Office, as he had consistently done during his time in the UK, when he was informed that he was not allowed to leave the premises.

Shortly afterwards, we were informed by a relative that their sibling had been detained. What followed, as is customary with bail hearings due to their short notice, was many hours of work within a short period of time (immigration bail applications should be submitted with various supporting documents, confirming the client’s good character and previous compliance with Home Office directions, to provide a prospect of success).

On the day of the hearing, we were armed with numerous arguments for our client’s release. As the judge entered the hearing however, the Home Office presenting officer, without any form of previous warning, flicked over removal directions for our client: he was due to be removed from the UK in three days’ time.

Our first instinct was to challenge the validity of said directions, as they had not been served at our office or on our client. Incredibly, we found out the Home Office had served the directions, but it was on the owner of the plane that was going to be transporting our client back to his home country.

Consequently, just like that, the hours of work and preparation beforehand were no longer of value.

The power of rule 41

This is because of rule 41 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, which provides that when the Home Office has set removal directions for a client within 14 days of a bail hearing, an immigration judge is prohibited from granting bail without the consent of the Secretary of State (e.g. the head of the Home Office!).

At this point, despite our best efforts, the judge and ourselves knew that our client’s prospects of success and being reunited with his family were nil. We were therefore required to withdraw our claim, as our client would not be able to submit another bail application within 28 days if we proceeded to a decision (rule 39 of the Tribunal Procedure Rules).

Rule 41 of the Tribunal Procedure Rules must be considered unique. How can it be that a judge is subject to authorisation by the respondent? How can this be said to protect the appellant’s right to a fair hearing? Is such a provision allowed in any other area of law (or would it be)? Imagine the reaction if the judiciary needed the permission of the fiscal as in the scenario discussed above, or if a judge was subject to a litigant’s consent in contractual proceedings, divorce cases, land disputes etc.

Perhaps this issue is not widely known or reported because it only affects asylum seekers or migrants to the UK. Don’t let certain newspapers deceive you – claiming asylum in the UK is a long, arduous and upsetting process. This is simply another feature of the process whereby the Home Office has an unfair advantage over asylum seekers and their representatives.

Reform is urgently and undoubtedly required over this anomaly of immigration law, as no party, in any area of law, with the exception of higher courts, should be able to restrict judicial decision making.

Kyle Dalziel, trainee solicitor, Loughran & Co

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