Bail Guidance Notes for Adjudicators
from the Chief Adjudicator
(Third Edition)
“It is the Government’s policy that
detention should be authorised only when there is no alternative.....” (Immigration
Service Instruction - 20 September 1994)
“The detention of asylum-seekers is in the view of UNHCR inherently
undesirable.” (UNHCR’s Guidelines -
February 1999)
“One only restricts a person’s
liberty if it essential to do so and one judges that by having regard to all
the factors that are properly to be considered in the particular case.” (R v SSHD ex parte Brezinski &
Glowacka, Kay J. CO/4237/95 and CO/4251/95
“Every person within the jurisdiction enjoys the equal protection of our
laws. There is no distinction between
British nationals and others. He who is
subject to English law is entitled to its protection.” (Khawaja 1984 AC74, Lord Scarman)
1. Introduction
1.1 These notes are issued
for the assistance of adjudicators when they are
considering applications for bail. Although for guidance, they are issued in the
hope that you will find yourself able to follow them so that there is some
uniformity in both the procedure we follow and the decisions we reach. They are not a detailed exposition of the
law. You may find it helpful to read
Chapter 17 (Detention and Bail) of Macdonald’s Immigration Law and Practice. I am again grateful to Brock Trethowan, an
adjudicator at
1.2 The adjudicator’s
jurisdiction to grant bail is derived from Schedule 2, paragraphs 22, 29 and
34, and Schedule 3, paragraph 2 of the
Immigration Act 1971 (as amended) (the 1971 Act). The procedure is governed by Part 5 (Bail) of
the Immigration and Asylum (Appeals) Procedure Rules 2003 (the 2003
Rules). Sections 44 to 52, 53(5) and 55
of the Immigration and Asylum Act 1999 (the 1999 Act) have been repealed. Section 54 of the 1999 Act came into force on
1.3 You
should be familiar with the Immigration Service’s Policy on Detention and
Temporary Release set out in Chapter 38 of the Service’s Operation Enforcement Manual, and the UNHCR’s
Guidelines relating to the Detention of Asylum Seekers, particularly Guidelines
2 and 3. These can be found in
the Appendices to these Guidance Notes.
Although you are not bound by this Policy and the Guidelines, there is
authority for saying that you should consider them when deciding issues of
bail.
1.4 There
is a common law presumption in favour of bail, subject to the restrictions on
the granting of bail under paragraph 30 of Schedule 2 of the 1971 Act. The UNHCR
Guidelines refer to it as “a presumption against detention”. Further, Article 5 of the European
Convention on Human Rights (ECHR) provides that everyone has the right to
liberty and to a speedy decision by a court as to the lawfulness of any
detention.
1.5 Once
bail has been granted by an adjudicator, it continues until the applicant;
(a) is re-detained
by an immigration officer for a breach or likely breach of a condition upon
which bail has been granted, or
(b) is removed, or
(c) has a successful outcome to an appeal.
In the meantime sureties remain bound by their
recognizances. You should make sure that
applicants and sureties are aware and understand this if bail is granted. An adjudicator has no statutory power to
revoke bail once it has been granted.
2. The
Hearing
2.1 The
Applicant.
2.1.1 Bail applications are
required to be heard within three days of the application being received by the
IAA (Practice Direction CA6 of 2001).
2.1.2 It should be the rule
rather than the exception that the applicant attends the hearing. This will be necessary, in particular, if
there is a dispute over the facts as set out in the bail summary. You may also wish to satisfy yourself that
the applicant understands and is likely to comply with any conditions that may
be imposed. Further, the applicant has a
right to attend the hearing of his application, be legally represented, and
have an interpreter provided if necessary.
2.1.3 Bail applications in the
“appropriate prescribed form” should be sent to the Hearing Centre (the
appropriate Centre) nearest to the Detention Centre where the applicant is
held. If the “
appropriate prescribed form” is not used, one will be faxed by the IAA
to the applicant’s representatives for completion and return. A list of Hearing Centres and the areas
covered by them will be found at Appendix 12.
2.1.4 If you
hear an application in the absence of the applicant and decide you cannot grant
the application without hearing him/her, then you will have to refuse the
application, unless it is withdrawn. It
will then be open to the applicant to renew the bail application. If the
applicant or his representatives wish the application to be heard at a Centre
other than the appropriate Centre, then a request for this can be made at the
time of the filing of the application when it will be forwarded to that Centre
for consideration by the Regional Adjudicator or Deputy for that Centre. Such a request may be granted, for example,
if the applicant is detained in a part of the country well away from where the
sureties live and the sureties can show there are insurmountable problems to
their attendance at the appropriate Centre. That is a matter for the Regional
Adjudicator or Deputy to consider. Your
role is to decide the application for bail that is before you, not the venue at
which it is to be heard.
2.2 Sureties
“Clearly it would be wrong to require sureties, if
there were no need for sureties, but where one reaches a situation where one
cannot otherwise be sure that the obligations will be observed, Parliament has
rightly provided that that extra ammunition is available to a Special
Adjudicator dealing with these matters if, in fact, that will have the
consequence that a person who might not otherwise be granted his liberty will
be granted it.”
(ex parte Brezinski & Glowacka, Kay J.)
2.2.1 It should be born in mind
that asylum seekers rarely have friends or relatives in the
2.2.2 Adjudicators
are reminded that sureties are only required where you cannot otherwise be
satisfied that the applicant will observe the conditions you may wish to
impose. Where there is clearly no
prospect of an applicant being able to obtain sureties, but in principle there
is a case for granting bail, then you should consider if more stringent
conditions might meet the particular needs or concerns of the case.
2.2.3 Remember that a surety remains bound by his or her recognizance until
bail comes to an end in one of the circumstances outlined in paragraph 1.5
above. The importance of assessing the
suitability of a proposed surety is obvious. It is only in exceptional circumstances that
you are likely to proceed with the hearing of a bail application in the absence
of any of the sureties being proffered, unless it is a case where you feel
sureties are not required in any event.
You must satisfy yourself that the sureties have the means to enter into
the recognizances they have offered, that they understand the obligations which
they will be undertaking, and that they are suitable people to undertake such
obligations. The reference to
suitability includes family and social ties as well as residence and financial
considerations. If any proposed surety
does not attend and you consider such attendance
is necessary in order to satisfy yourself as to suitability, there is
nothing to prevent you from refusing the application if it is not
withdrawn. This will not prevent the
applicant making a fresh application when a surety is available, or making a fresh application at another hearing
centre closer to where the sureties reside as mentioned in paragraph 2.1.4
above.
2.3 Recognizances
2.3.1 Under the 1971 Act you are still required to take a recognizance from the
applicant before any release on bail.
You should always enquire of the applicant or the representative if
there are any assets. If the applicant
has no assets, as is usually the case, the recognizance can be a nominal sum of
£10.
2.3.2 Sometimes
the applicant’s representative indicates that the sureties have deposited, or
are prepared to deposit, all or part of their recognizance money with the
applicant’s solicitors subject to an undertaking not to part with it without
the authority of the IAA. Adjudicators
in
2.3.3 The
amount of the recognizance must be fixed with regard to the surety’s means, but
it must always be an adequate and sufficient sum to secure attendance. There is no tariff figure and the sums
involved are always a matter for the individual adjudicator. Once you have decided that bail is right in
principle and that sureties are required, then you should work your way through
the “Surety Check List” (Appendix 8).
The sureties will have been notified of the nature of the documents they
should bring with them, and your attention is drawn to the Notice to
Applicants, Representatives and Sureties ADJ32 (Appendix 5) that is sent out
with all Hearing Notices. Having
obtained as much information as you can, then assess the amount of the
recognizance bearing in mind the following in particular:
(a) it must be realistic
in the sense that it must be well within the resources of the surety, and not
so high as to be prohibitive;
(b) it must be assessed in relation to the means of the surety
alone;
(c) it must be sufficient to satisfy you that it will ensure
that the applicant and the surety will meet their obligations;
(d) it must be realisable in the event of forfeiture.
2.3.4 Sometimes
you are asked to consider accepting a nominal sum as a sufficient
recognizance. What is a nominal sum to
one person may be a substantial sum to another.
If you have decided that the risk of non-compliance with conditions
requires re-enforcement by way of sureties, then it is unlikely that a
“nominal” sum would be sufficient to ensure attendance. The only exception may be where the surety is
the applicant’s spouse or partner, or someone at whose home the applicant is to
live, and they are on a low income with no savings. However even then you may require another
surety in a more substantial amount if you find the risk of non-compliance too
great.
2.3.5 As
already mentioned in paragraph 2.2.1,
sometimes officers or senior figures from Charities, Churches and other such
organisations are offered as sureties.
You should bear in mind that the funds of such organisations are not the
assets of the person being put forward as a surety. The amount of any recognizance must be based
on the means of the surety, and you must be satisfied that in the event of
forfeiture the payment can and will be made by the surety. Such an organisation cannot be a surety. You may be told that such an organisation has
taken the applicant under its wing, is providing its support, and will see that
there is compliance with all conditions that may be imposed. If after hearing evidence from a responsible
person from the organisation concerned you are satisfied that this is so, then
if you have decided bail is right in principle you may feel it can be granted
without the need for a surety but possibly with
the imposition of more stringent bail conditions. Before doing so you may feel it relevant to
ask if the organisation concerned has accepted such a responsibility before and
been let down.
2.3.6 The
question sometimes asked is, can a surety be released from his recognizance
before bail comes to an end? The answer
is, only if the adjudicator agrees upon hearing an application from the person
bailed for the release of one of the sureties.
Either you must be satisfied that two sureties are no longer necessary,
or there must be a satisfactory replacement.
2.4 Conditions
2.4.1 The primary
condition imposed on granting bail is to appear before an adjudicator or
immigration officer at a specified place and on a specified date (the primary
condition). You then have to decide
whether it is necessary to impose further conditions (secondary conditions) to
ensure compliance with the primary condition.
2.4.2 If you decide secondary conditions are necessary, it is usually
appropriate to require conditions of residence and reporting to the local
Police Station or Immigration Service Reporting Centre.
2.4.3 Normally an application for
bail should not be made until the applicant has an address at which to
reside. This
can cause problems if the applicant has applied to the National Asylum Support
Service (NASS) for financial support and accommodation but is waiting for
eligibility to be assessed and accommodation allocated. Such accommodation will not be allocated
while the applicant is detained. You
will note that Rule 32(2)(c) of the 2003 Rules
requires the bail application form to provide details of the address where the
applicant is to reside “or, if he is unable to give such an address, the
reason why an address is not given.”
The latest version of NASS Policy Bulletin 64, which is still to be
published, will explain the steps to be taken by a detained person in order for
eligibility for financial support and accommodation to be assessed and sets out
the wording that should be used in the bail application form when NASS is to
allocate accommodation. Where an
applicant is relying upon accommodation to be allocated by NASS, it will be
necessary for written evidence from NASS to be produced at the hearing of the
bail application confirming that NASS has accepted that the applicant is
eligible for its support and that it will be allocating accommodation. NASS is aware of this requirement. If bail is granted, the condition of
residence should read:
“To
reside at such accommodation as is directed by NASS in accordance with the
terms and conditions of support given, and to notify the IAA, the Chief
Immigration Officer and the Secretary of State for the Home Department of the
address of such accommodation within 24 hours of being provided with it.”
This wording has been approved by NASS.
Policy Bulletin 64 will also indicate that when allocating
accommodation, caseworkers should have regard “to the location of the person or
organisation acting as surety”.
2.4.4 If
bail is granted subject to a condition to reside at accommodation to be
allocated by NASS, it may be difficult to impose at the same time a condition
of reporting since you will not know where the applicant is to reside. In these circumstances the primary condition
should be worded so that the return date upon which applicant is required to
appear before an adjudicator or immigration officer is not less than seven days
and not more than ten days after the grant of bail. Within that time the applicant will have been
provided with at least temporary accommodation, and may even have been given
details of when and where more permanent accommodation will be available. You will then be in a position to impose a
condition to reside at the address of that temporary accommodation and
subsequently at the address of the permanent accommodation from the date upon
which it becomes available. You will
also be in a position to impose a reporting condition if you feel it is
necessary, since you have at least a temporary address for the applicant. If on the first return date the applicant is
not in a position to provide the address of more permanent accommodation or the
date upon which it will become available, then bail should be continued subject
to a condition of residence in the same terms as set out in the preceding
paragraph and noting the address of the temporary accommodation that has been
provided, with a further return date of not less than seven days and not more
than ten days. It is essential that the
IAA and/or the immigration authorities exercise stricter than usual control
over an applicant until he is residing in reasonably permanent accommodation.
2.4.5 The
Home Office is in the process of setting up a network of Reporting Centres. At present
these are at Croydon,
2.4.6 You are at liberty to
impose such other secondary conditions as
you may consider necessary to
ensure that the applicant answers to his bail.
You may be asked to impose a condition prohibiting employment. You have no jurisdiction to impose such a
condition as it is not one that is necessary to ensure the applicant answers to
bail
2.5 Burden
and Standard of Proof
2.5.1 The burden of proving that
the presumption in favour of liberty does not apply lies on the Secretary of
State. As
detention is an infringement of the applicant’s human right to liberty, you
have to be satisfied to a high standard that any infringement of that right is
essential.
2.5.2 The
Immigration Service’s Operation Enforcement Manual suggests there must be
“strong grounds for believing that a person will not comply with conditions of
temporary admission or temporary release for detention to be justified”.
2.5.3 There is
no precise test laid down as to the standard of proof required in bail
cases. Useful guidance is available in
the Bail Act 1976. A defendant need not
be granted bail if the Court is satisfied “there are substantial grounds for
believing that the defendant, if released on bail (whether subject to
conditions or not), would fail to surrender to custody”. It is suggested you adopt the “substantial
grounds for believing” test which would be higher than the balance of
probabilities but less than the criminal standard of proof. If allegations in the bail summary are
contested in evidence then the Secretary of State should adduce evidence,
including any documents relevant to the decision to detain, to support such
allegations.
2.6 Factors
to be Considered
2.6.1 The
risk of absconding, although the principal factor, is
just one of the factors to be taken into account on an application for bail and
has to be balanced against other factors.
2.6.2 Lord
Justice Dyson noted in the recent Court of Appeal case of ex parte ‘I’
[2002] EWCA Civ 888 that although it was not possible to produce an
exhaustive list of circumstances that are or may be relevant to a decision to
detain pending deportation, they included the following:
(a) the length of detention,
(b) the obstacles that
stand in the way of removal,
(c) the speed and
effectiveness of any steps taken by the Secretary of State to surmount such
obstacles,
(d) the conditions in
which the applicant is detained,
(e) the effect of
detention upon the applicant and his/her family,
(f) the risk of
absconding, and
(g) the danger that, if
released, he/she will commit criminal offences. .
He went on to say that “the relevance of the
likelihood of absconding, if proved, should not be overstated.” Although this case related to the question of
how long it was reasonable to detain a person pending deportation, the list
provides some guidance for cases relating to detention pending decision or
appeal.
2.6.3 The
UNHCR’s Guidelines make helpful comments on the detention of minors, vulnerable
persons and women.
2.7 Procedure
at Hearing
2.7.1 When you get your bail
files, check the computer records (
2.7.2 The 2003 Rules require the
Secretary of State to file written reasons (the bail summary) for wishing to
contest a bail application not later than 2.00 pm on the day before the
hearing, or if served with notice of hearing less than 24 hours before that
time, as soon as reasonably practicable.
If he fails to file a bail summary within the required time, or if there
is no bail summary, how should we proceed?
If no bail summary is available, then you should proceed without
it. This implies that bail would have to
be granted. If it is provided late, then
you can consider it. However if the
allegations contained in it are disputed, its late submission and the lack of
time given to the applicant to prepare his response to it must affect the
evidential weight you can attach to it and any evidence submitted in its
support.
2.7.3 If you consider the bail
summary to be inadequate, you should inform the Presenting Officer at the
beginning of the hearing. If the
Presenting Officer asks for time to make further enquiries, you may consider it
appropriate to grant a short adjournment to enable him or her to make a
telephone call to obtain additional information from the entry port.
2.7.4 It is suggested you deal
with the application in three stages.
First, is this a case where bail is right in principle, subject to
suitable conditions if necessary? Second, are sureties necessary? Third, are the sureties and recognizances
offered satisfactory? If you indicate
bail is right in principle, make it clear that your decision is subject to
there being suitable and satisfactory conditions and sureties if you are going
to require them.
2.7.5 If you find that the
sureties offered are not satisfactory, you may be asked to adjourn the
application to enable more satisfactory sureties to be found. This may place you in a quandary as an adjournment could cause administrative problems. If you adjourn the application, it must come
back before you on the adjourned hearing within a matter of days. If you are a
part-time adjudicator you may not be sitting again within that
time. If
you are a full-time adjudicator you may not be sitting or may be booked to sit
in another court or have a full hearing list already arranged for the date on
which it is suggested the adjourned bail application should be heard. Although there is no bar to adjourning a bail
application, it would be better practice to refuse the application for bail so
that a fresh application can be made when more suitable sureties have been
found. In any event, this is likely to
result in an earlier hearing of the application than if it was adjourned.
2.7.6 Although another adjudicator is not bound by your findings, if you
have recorded in the record of proceedings that you found it appropriate to
grant bail in principle and have given reasons for that finding, but that you
have not felt able to grant bail because of lack of suitable sureties, then
another adjudicator hearing the renewed application is likely to take the view
that your findings are persuasive.
2.7.7 You must make a note in you record of proceedings of the following
matters in particular;
(a)
the
evidence given,
(b)
the
gist of the arguments for and against bail, and
(c)
your decision and the reasons for it.
2.7.8 You
will note that Rule 33 of the 2003 Rules requires a written notice of decision
to be served on the parties and the person having custody of the
applicant. Where bail is granted, then Form ADJ42 (Appendix 8) must be
completed. It must be signed by the
applicant and the
sureties if any in your presence, and must be signed by you. If bail is
granted, remember that if it is pending decision or removal it is to an
Immigration Officer and if it is pending an appeal it is to an Adjudicator or
the Tribunal. If bail is granted pending
decision or removal it should be to a date when a decision or removal is
expected and you should ask the presenting officer when that might be. If bail is granted pending appeal to an adjudicator and the date of the appeal
hearing is known, it should be to that date and to an adjudicator at the Court
where the appeal is to be heard. If the appeal is to the Immigration Appeal Tribunal
and the date of the appeal hearing is known, then bail should be to the
Tribunal. It is suggested that
bail should not be granted or renewed for a period in excess of three months in
any event. It is your responsibility to
complete Form ADJ42, or to see that it has been properly completed. Copies of the Form ADJ42 should then be made by your usher and
handed to the applicant and his representatives, the Presenting Officer, the
sureties and the custody officer. The
applicant will then be released.
2.7.9 In the
event of you having felt able to proceed with and complete the hearing of the
application in the absence of the applicant or any of the sureties and bail has
been granted, you should complete the back of Grant of Bail form ADJ42
appropriately, i.e. giving authority to the Governor of the Detention Centre at
which the applicant is detained and/or the Inspector of Police i/c the Police
Station for the area in which the surety resides to take the
recognizances. The form will then be
sent to the appropriate Detention Centre and/or Police Station for the
recognizances to be taken. Bear in mind
that the occasions when it will be possible to grant bail without the applicant
and/or the sureties attending will be rare.
2.7.10 Where bail is refused, Rule 33(5) of the 2003 Rules requires
the written notice of decision to include reasons for the refusal. It has been suggested that the arguments for
and against bail as well as the reasons for the decision should be incorporated
in the written notice of decision. Provided
such arguments are set out in your record of proceedings and the reasons for
the decision are set out in your written decision, then the requirements will
have been satisfied. The front of Form
ADJ50 (Appendix 9) should be completed, and the reasons for your decision
should be written out on the back of the Form.
You should sign both the front and the back of the form. Copies should then be made and handed to the
parties and their representatives.
3. Renewed
Applications for Bail
3.1 If a
bail application is refused, an applicant has a right to make a fresh
application on the same grounds and any further grounds that may have
arisen. Renewed bail applications should
not be a review of previous decisions.
Adjudicators must have regard to the reasons for the decision given by
previous adjudicators and should generally expect to see fresh additional
grounds and/or some change in circumstances.
3.2 Article 5 of the ECHR
requires a decision to detain to be reviewed at reasonable intervals (Bezicheri v Italy (1989) 12 EHRR
210). At present this can only be done
in our jurisdiction by way of renewed applications for bail. What is a “reasonable interval” is a question
of fact in each case. The Court said in Bezicheri that the nature of detention
on remand called for short intervals before the decision to detain was again
considered by the courts. In Dougoz v
3.3 The
lapse of time between bail applications may well itself be a relevant
factor. It is suggested that provided a
fresh bail application is made at least 28 days after the refusal of the
previous application and you find that the lapse of time is relevant to the
particular case then you should be prepared to consider arguments that were
presented on the previous application as well as any fresh arguments.
4. Continuation
of Bail
4.1 As
indicated in paragraph 1.5 above, once bail is granted it continues until the
happening of one of the events set out in that paragraph. Provided the appellant complies with the
primary condition of his bail to appear before you on the specified date, then
you have no power to do other than to continue bail with a fresh primary
condition to appear before an adjudicator or immigration officer on another
date, together with such secondary conditions as you may deem necessary. The appearance of the applicant before you in
answer to the primary condition is an opportunity to consider any applications
to vary the secondary conditions, e.g. residence and the frequency of
reporting. If the applicant has been on
bail for some time and has faithfully complied with all conditions, there is
nothing to prevent you from varying the frequency of reporting on your own
iniative, provided you give the presenting Officer an opportunity to make
representations.
4.2 Where
bail is to an adjudicator pending appeal, the applicant should attend. It is the primary condition upon which he was
granted bail in the first place. His attendance should only be excused in exceptional
circumstances, e.g. illness or other unavoidable circumstance preventing his
appearance. You have no power to require
the attendance of sureties. For so long
as the applicant remains on bail, their recognizances continue. They entered
into their recognizances for the applicant to comply with conditions, not for
them to comply with conditions. When
bail is granted subject to sureties, they should be advised that it would be in
their interests to attend to see that the applicant has done so. The could also be advised that if the
applicant does not appear in answer to the primary condition, their attendance
to provide an explanation for the absence of the applicant is a matter that may
be taken into account in any subsequent forfeiture proceedings.
4.3 If an
applicant fails to appear before you in answer to the primary condition and/or
fails to comply with secondary conditions, an Immigration Officer is entitled
to re-detain the applicant. If the
applicant has failed to comply with any secondary conditions but has not been
re-detained and appears before you in answer to the primary condition, it is
for the immigration authorities to decide what steps to take with regard to
re-detention. As has already been made
clear, you have no power to terminate bail.
If the applicant appears, but has failed to comply with secondary
conditions, you would have to continue his bail with a fresh primary condition
and probably more stringent secondary conditions. If the applicant does not appear, it would
seem pointless to impose a fresh primary condition. You can only hope that steps are taken by an
immigration officer to detain him. You
should direct the commencement of forfeiture proceedings and authorise the
completion and issue of the form of Notice to Show Cause (Forfeiture) ADJ47
(Appendix 10). The form should be
completed by the bail clerk and brought to you to check and sign. If it is not possible for the form to be
prepared for your signature on the day you direct such proceedings, then it
should brought to you or a full-time adjudicator as soon as possible thereafter
for checking and signing. In any event
you should make a note in your record of proceedings that you have directed
Forfeiture Proceedings are to be taken.
4.5 When continuing bail by
imposing a fresh primary condition for
the applicant to appear before an adjudicator or
immigration officer, you must complete the form ADJ42. This relates to continuation of bail as well
as to grant of bail. It must be signed
by you, the applicant and the sureties if present. Copies should be made and given to all
concerned. If
the sureties have not attended, make a note on the file cover that copies are
to be sent to them.
5. Continuation
of Bail after Hearing of Appeal
5.1 The action we should take
at the end of the hearing of an appeal where the appellant is on bail is to
continue bail with a primary condition
that the appellant appears before an adjudicator in six weeks time, together with such secondary conditions as may be
necessary. By then the
determination should have been promulgated and the Home Office should have
decided what action to take if the appeal has been dismissed and any
certificate has been agreed, or no application for leave to appeal has been
filed.
5.3 If the appellant appears
before you in six weeks time for bail to be continued and an application for
leave to appeal has been filed or granted, bail should be continued to appear
before the Immigration Appeal Tribunal if there
is a date for the appeal hearing. If
leave to appeal is still being considered or no date for the appeal hearing has
been notified, then bail should be continued to appear before an adjudicator in
not more than four weeks time, when it is to be hoped there will be a decision
on the application for leave and an appeal hearing date. If there is no appeal or leave to appeal has been refused, and there is no immigration
officer present to detain the appellant, bail should be continued with a fresh primary condition that the applicant
appears before an immigration officer on a date, and at a time and place to be
given to you by the Presenting Officer.
6. Forfeiture
Proceedings
6.1 The adjudicator’s
jurisdiction in Forfeiture Proceedings is derived from Schedule 2, paragraph 31
of the 1971 Act.
6.2 Failure to comply with secondary conditions of residence or reporting
to a Police Station or Reporting Centre, on their own or in combination, do not justify the commencement of Forfeiture
Proceedings. Only a failure to comply
with the primary condition to appear before an
adjudicator or an immigration officer can justify such proceedings. Normally an adjudicator will have seen the
bail file and authorised the issue of such proceedings, but check that all the documents are in order and that
the Notice to Show Cause ADJ47 has been properly issued.
6.3 The applicant, if it has
been possible to serve the Notice to Show Cause upon him,
and the sureties should appear on the hearing of the proceedings. If they do not, satisfy yourself that they
have been properly served with the Notice to Show Cause before continuing with
the hearing.
6.4 When assessing whether or
not there should be forfeiture of the recognizances and the amount to be
forfeited, take account of the following matters in particular with regard to
the sureties:
(a) the level of their responsibility for the applicant’s
failure and the steps taken by them to ensure compliance,
(b) any steps taken by them to report any concerns to the
Immigration Authorities,
(c) whether the applicant failed to comply with any secondary conditions and any steps taken by the
sureties to ensure compliance, and
(d) any other explanations offered by the sureties.
6.5 Ability to pay and method
of payment is primarily a matter for the
6.6 If the applicant and/or
any sureties fail to appear and there is no explanation for such failure, you
have little alternative but to order the whole of the recognizance to be
forfeited.
6.7 Record your decision and
the reasons for it in the Record of Proceedings. This is particularly important if you proceed in the absence the applicant and/or the
sureties. Check and sign the Order for
Forfeiture ADJ48 (Appendix 11) when it has been prepared for you.
7. Legality
of Detention and the Human Rights Act
7.1 Detention under the 1971
Act is an exception to the right to liberty under Article 5 of the European
Convention on Human Rights (ECHR).
Proceedings by which the lawfulness of the detention is challenged are
normally by way of Habeus Corpus or application for leave to apply for Judicial
Review to the
7.2 Article 3
Representations under this Article are likely to relate to the
conditions in which the applicant is being held. Any complaints about such conditions should
have been addressed to the Home Office in the first instance. It is suggested that only if there is
evidence that such complaints may be justified and the Home Office has refused
to act upon them does it then become a matter for us to consider when making
sure that our decision is HRA compliant.
Remember that the conditions would still have to attain a “minimum level
of severity”.
7.3 Article 5
The detention still has to be lawful in accordance with Article 5(1)(f), i.e. to prevent an unauthorised entry, or where
deportation or extradition proceedings are being taken. Not all asylum seekers are attempting to gain
unauthorised entry. Some are here having been granted leave to enter,
perhaps as a visitor, and then have applied for asylum. Such people are only liable to detention if
they have failed to comply with any residence or reporting conditions that may
have been imposed under Section 71 of the Nationality, Immigration and Asylum
Act 2002. If this is not clear
from the bail summary, seek clarification from the Presenting Officer. If detention is preparatory to deportation,
it will only be justified for so long as deportation proceedings are in
progress. If
it is claimed that the detention is unlawful, then an application for bail to
the IAA is not the appropriate application or forum to test its
lawfulness. If an applicant is seeking
bail, it presupposes that the detention is lawful.
7.4 Article 6
Although it is argued that Article 6 does not apply to asylum claims,
excessive delay is a factor that should be taken into account, particularly
where such delay is not the fault of the applicant.
7.5. Article 8
This will be raised from time to time, particularly when detention
separates spouses and children where some may have been granted temporary
admission, or it is claimed that the
circumstances or conditions of the detention amount to an interference with
private life (physical and moral integrity). If you reach the conclusion that detention
must be maintained, then any interference with the applicant’s private or family life is likely to be in
pursuance of a legitimate end, in accordance with the law, and proportionate.
8. Conclusion
Unless the Secretary of State satisfies you
there are substantial grounds for believing the applicant would fail to comply
with the primary condition attached to the bail, then
bail should be granted.
His
Chief Adjudicator May 2003
APPENDICES TO BAIL GUIDANCE NOTES
1. Extract from Chapter 38 of the Immigration
Service’s Operation Enforcement Manual
2. UNHCR’s
Guidelines on the Detention of Asylum Seekers
3. Notice
of Hearing (ADJ30)
4. Notice
to Applicants, Representatives and Sureties (ADJ32)
5. Notice
of Hearing of Bail Continuation/Variation (ADJ31)
6. Surety
Check List
7. Grant/Continuation
or Variation of Bail (ADJ42)
8. Refusal
of Bail (ADJ50)
9. Notice
to Show Cause (Forfeiture) (ADJ47)
10. Order
for Forfeiture (ADJ48)
11. List of
Hearing Centres and the areas covered by them