How to prepare an Immigration Bail application

Drawing on our extensive experience at Imperium Chambers, this guide deals with common issues we see when representing clients in their applications for bail at the First-tier Tribunal (Immigration and Asylum Chamber). Whilst not exhaustive, we hope that this guide will support solicitors and legal representatives in preparing the strongest possible application.

Barriers to removal

Clients who are in detention are often desperate to be released as soon as possible, sometimes prioritising this over the strength or completeness of their longer-term immigration claim. Whilst this is understandable, it is important to manage expectations and ensure that things are done properly as well as quickly. It is important to remember that the court and the Home Office are unlikely to be impressed by a human rights or asylum claim that gives no details.

In practice, many judges will want to know details about the claim and assess its merits (even if this is not strictly within their remit). Ensuring that an application has been submitted, and contains sufficiently detailed representations and evidence, is vital.

If removal directions (RDs) have been set, this must be urgently addressed and prioritised over the bail application itself. While there are circumstances in which bail can be granted where there are RDs in place, it is almost always better to challenge the RDs themselves first. Practically, it is only once a person’s RDs have been cancelled, and a barrier to removal put in place, that the court will consider granting bail.

It is important to remember that Fee Waivers are not a barrier to removal (and are not even required given that Human Rights claims can be submitted for free whilst a client is in detention.

Pre-Action Protocol (PAP) letters should also not be relied on as a formal barrier to removal. Whilst in practice the Home Office usually deal with a PAP before issuing RDs, this is not always the case and it is much safer to lodge a Judicial Review to confirm that there is a barrier in place.

Proposed addresses

Residence conditions are not always imposed, but the court will usually want to know that the address somebody proposes to live is suitable.

• Suitability: it is important to check that there is actually space for the Applicant at the proposed address – ask the person providing the address how many bedrooms there are and who lives there. On one occasion, an FCS told the judge in a hearing that the Applicant could sleep on the kitchen floor. Needless to say, this didn’t go down too well!

• Proof of accommodation: Tenancy agreements or proof of ownership of the property should be provided. Whilst the guidance for Immigration Bail judges says that it should be assumed that landlords will grant consent for an Applicant to stay at a property, it is always a good idea to get written confirmation of this beforehand. This is especially the case if the tenancy agreement has a clause stipulating that only the person named on the tenancy may live there (for example).

• Multiple tenants: If the tenants for the property include the FCS and somebody else (a friend or partner), it is a good idea to get written confirmation from that person that they have no objections to the Applicant staying with them.

• Change in proposed address: occasionally, we have turned up to court to find out that the address proposed by the Applicant has changed since the application was made. This is not a problem per se, but it is very important to inform the court and Home Office of a change in circumstances as early as possible. In some cases, it may be necessary to withdraw the application.

Financial Condition Supporters (sureties)

Financial Condition Supporters (FCS), AKA sureties, are often the most important feature of a bail application. Making sure that they are suitable, know their responsibilities, and have a strong relationship with the Applicant is very important.

Background checks: speak to the FCS beforehand. Find out how long they have known the Applicant, and in what capacity? What is their immigration status? Have they had any problems with the police or the Home Office? Have they acted as an FCS before? If so, what happened?

Awareness of responsibilities: If they work, how will then keep an eye on the Applicant while they are away? Why should the court trust them and why will they be able to exert influence over the Applicant? Do they know what will happen to their money if the Applicant fails to comply with their conditions?

Address and finances: If the FCS is the person who is going to accommodate the Applicant, make sure their bank statements match the proposed address. Crucially, please ensure that the FCS actually has enough money in their bank account to cover the sum they are offering. This is often a problem and an answer we hear time and again is that the FCS has a savings account which they can rely on. This may well be the case, but if their current account does not show that they regularly have the amount offered, then ask them to provide their savings account statements as well!

Providing a witness statement covering the Applicant and FCS’ relationship can be a good idea. If the FCS is providing joint bank statements, obtain a statement from the other person as well confirming that the joint account can be relied on.

Final thoughts

Immigration Bail applications are time-sensitive and emotionally charged, but preparing them properly significantly improves their chances of success. If you would like more help on preparing an application, or need representation at a Bail hearing, please get in touch with our Immigration Barristers.

By Stefanie Alvarez, Edward Banham, Anyla Katanolli, Kim Pullinger