COVID 19: Implications for bail hearings

Amid the COVID-19 pandemic, the Home Office has released hundreds of immigration detainees. However, many more remain detained as the risk of infection in places of incarceration grows.

For now, bail applications are the best option for those still detained. Border closures, reduced airline availability, confirmed cases of COVID-19 in immigration removal centres and the increased risk to those with physical or mental health vulnerabilities means that immigration judges may be particularly receptive to arguments that removal is not imminent and continued detention is no longer reasonable. The reality facing immigration detainees on the ground, and substantive arguments that can be made on their behalf, have already been explored in Miranda Butler’s recent blog post.

We have drawn from our recent experience to provide a procedural update for practitioners making bail applications in the current climate. We do so with the caveat that the status quo is subject to flux, requiring a keen eye for ongoing developments.

Remote hearings and the Pilot Practice Direction

As far as immigration bail hearings are concerned, the current First-tier Tribunal (Immigration and Asylum Chamber) Operational update from HM Courts & Tribunals Service states that “Bail applications will be prioritised and where a hearing is required, will be listed to take place by telephone or video”. The Senior President of Tribunals, Sir Ernest Ryder, issued the Pilot Practice Direction on ‘Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal’ on 19 March 2020.

Decisions ‘on the papers’

The Pilot Practice Direction allows for cases to be triaged with a view to identifying whether they can be determined without a hearing, subject to the parties’ consent to the tribunal making a binding decision on the papers. The Tribunal Procedure (Coronavirus) (Amendment) Rules 2020, which come into force on 10 April 2020, amend the First-tier Tribunal Procedure Rules 2014 to include the following:

“Coronavirus temporary rule (decisions without a hearing)
4A.—(1) Notwithstanding anything in rule 25 (consideration of decision with or without a hearing) and rule 39 (bail hearings), the Tribunal may make a decision which disposes of proceedings without a hearing if the Tribunal considers that the conditions in paragraph (2) are satisfied.
(2) The conditions are—
  (a) the matter is urgent;
  (b) it is not reasonably practicable for there to be a hearing (including a hearing where the proceedings would be conducted wholly or partly as video proceedings or audio proceedings); and
  (c) it is in the interests of justice to do so.
(3) This rule does not prejudice any power of the Tribunal to make a decision which disposes of proceedings without a hearing otherwise than under this rule.”

In bail cases, provisional decisions will be made with reference to the bail summary issued by the Secretary of State, and the applicant’s written bail grounds. The grounds should therefore be expressed persuasively and served punctually, as these will foreground the judge’s first impression of the merits of the application.

Hearings in absentia?

The Pilot Practice Direction provides for hearings to proceed in a party’s absence “so long as this can be done in accordance with the overriding objective to deal with cases fairly and justly”. However, individual tribunal hearing centres are adopting differing approaches in this regard.

By way of example, recent bail hearing notices from Hatton Cross IAT have stated that:

• Bail hearings will take place by telephone;
• The hearings will be between the immigration judge, the applicant’s representative and the Home Office Presenting Officer (“HOPO”), in the absence of the applicant and any Financial Condition Supporters.

Recent notices from Birmingham IAT differ in that they state:

• The applicant’s representative, the HOPO and the court interpreter will take part by telephone, whilst the applicant and the judge take part by video link;
• Financial conditions are not being imposed because of the difficulty in Financial Condition Supporters participating in hearings and signing the bail grant confirming that they are bound by the condition. However, any evidence which can be provided by the Financial Condition Supporter should be served.

The Immigration Law Practitioners’ Association, with the support of Garden Court Chambers, has written to the President of the First-tier Tribunal, Michael Clements, raising the current lack of uniformity and requesting “a definitive Practice Direction” applicable to all hearing centres.

Taking instructions and giving advice

Immigration Removal Centres have been closed to visitors, meaning detention surgeries are not taking place. This presents obvious hurdles to access to justice. The added inability of counsel to have face-to-face discussions with their clients means that last-minute instructions cannot be taken. The absence of applicants from some hearings, and the fact that in others they can only be effectively seen and heard by the judge, compounds restrictions to the proper role of counsel. In these circumstances, taking detailed telephone instructions from clients and arranging for pre-hearing teleconferences with counsel will be invaluable.

Remote hearings have also eliminated the opportunity for counsel to hold preliminary discussions with the HOPO to correct errors in the bail summary, clarify matters or narrow the issues in dispute. Practitioners may wish to consider establishing alternative lines of communication with the HOPO if possible.

Financial Condition Supporters and residence providers

The current exclusion of Financial Condition Supporters and residence providers from hearings means that applicants cannot rely on their financial undertaking nor their live evidence, which are usually positive factors weighing in favour of being granted bail.

Although the formal use of financial conditions has been halted, documentation from Financial Condition Supporters, residence providers and other support figures can be served with the bail bundle. This may also include witness statements taken by telephone and letters of support sent via email, which may mitigate the absence of live witnesses to vouch for the applicant.

Disclosure

As usual, disclosure should be sought of documents including the applicant’s updated PNC, licence, probation reports, detention medical records, rule 35 reports and any detention reviews conducted in the run up to the hearing. During the recent Detention Action litigation the Home Office disclosed that it has halted the detention of nationals from countries to which removal is not possible unless the person presents a “high risk of harm to the public”. A press release from Detention Action states that the Home Office has “committed to urgently review the cases of every person held in immigration detention, with a view to further releases over the coming days”. Whilst no timescale has been provided for these reviews, they must happen within 28 days in accordance with rule 9 of the Detention Centre Rules 2001.

The contents of this briefing are not intended as legal advice.