New BID research report on bail decision making and long-term detention, 'The Liberty Deficit: long-term detention and bail decision-making'
Over 5 months in 2011-12 and with the assistance of pro bono counsel and trained observers from The Law School at City University , BID carried out observations and detailed analysis of 80 immigration bail hearings. In half of these cases the applicant's case was prepared by BID as their legal representative, and they had the benefit of pro bono counsel. The other cases were brought by detainees preparing their application and representing themselves.
The research sought to examine whether the immigration bail system serves the needs of the long term detainees who form the majority of BID’s clients. We take ‘long-term’ in this report to mean continuous administrative detention of a period of 6 months or more, in line with the guidance to First Tier judges on bail (2012) which states:
“The senior courts have been reluctant to specify a period of time after which the length of detention will be deemed excessive and as a result that bail should be granted. Each case turns on its own facts and must be decided in light of its particular circumstances. However, 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” (HMCTS, 2012: para 19)
Our research suggests that the First Tier Tribunal Immigration & Asylum Chamber is not equipped to deal with matters of criminal risk and release, which have come increasingly to the fore since the foreign national prisoner scandal and the introduction of ‘automatic’ deportation. There is an overwhelming failure on the part of the UK Border Agency to substantiate assertions made before the Tribunal in relation to the risk of re-offending, serious harm, or absconding, matched by a failure of the Tribunal to seek this evidence from the Border Agency. The amount of time made available by the Tribunals Service for barristers to take instructions, for the hearings themselves, and for comprehensive interpretation has not responded to the increasing number of detainees with complex and lengthy immigration histories. We believe that the First Tier Tribunal IAC is not using its powers sufficiently to ensure that detention does not become unnecessarily prolonged; for example to adjourn with directions to parties to avoid the need for a further bail application.
The report is available to download below.
In the report we revisit the founding principles of the Tribunal system, and address the practical barriers to justice that are still being experienced by detained bail applicants. We examine the evidential basis on which bail decisions should be made and are being made by the Tribunal, and highlight the poor record of disclosure - to both the Tribunal and the bail applicant - of the UK Border Agency. We question how fair bail decisions can be without proper disclosure of evidence, and the role of the Tribunal in ensuring this. The report revisits the ‘circle of inaction’ described in BID’s earlier report on bail decision-making ‘A nice judge on a good day: immigration bail and the right to liberty’ (2010), and finds that little has changed in the Tribunal despite the publication of new bail guidance for judges.
The ongoing and overwhelming sense of stasis from one bail hearing to the next leaves long term detainees, especially those with a criminal conviction, unable to rely on bail as a fair and accessible means of challenging their detention and achieving release where they cannot be removed. We find that the bail process in fact contributes to long-term detention.
In later chapters the report examines the remedies available to bail applicants who believe they have not had a fair hearing in the absence of a right to appeal, particularly the handling by the Tribunal of complaints about the conduct of judicial office holders, and finds the Tribunal wanting.
We conclude with a summary of key findings and recommendations for the Tribunal, UKBA, the Legal Services Commission and other agencies, including BID's recommendation that in the absence of substantiated arguments, full written determinations, disclosure of records of proceedings or judges’ notes of evidence, and a First Tier judiciary trained in assessing criminal risk, it must be impossible at present for the First Tier Tribunal IAC to have a role in determining the continued lawfulness of detention.
Downloads
The Liberty Deficit: long term detention & bail decision making
