The Home Office can detain people subject to immigration control on the basis of powers vested on the Secretary of State by Schedule 2 and 3 of the Immigration Act 1971 (as amended). The circumstances under which an individual may be detained are when being examined for their suitability to entry, pending removal or deportation, and as the members of the crew of ships or aircraft. The presumption in law is in favor of liberty as opposed to detention and any detention must be justified and considered reasonable. The UK currently operates a new Bail regime under which power to grant bail is conferred on both the Secretary of State and the First-Tier Tribunal.
Secretary of State Bail
The power to grant bail is available to the Secretary of State for the Home Department by virtue of paragraph 1 of Schedule 10 of the Immigration Act 2016 if an individual is detained under the detention powers vested with the Secretary of State or liable to be detained under any of those powers. The application for bail can be made anytime after arrival in the UK using the bail application form Bail 401. The application is normally determined by the Home Office staff on behalf of the Secretary of State and there will not be a hearing.
The successful bail application may be subject to a number of conditions and may include, but not limited to the following:
- Reporting to an Immigration Official regularly;
- Reporting to an Immigration Official regularly;
- Attend an appointment or hearing;
- Electronic monitoring by tag;
- Restrictions on work or studies;
- Compliance with all conditions agreed upon with the granting of bail.
If the applicant’s bail guarantor violates the bail requirements, the guarantor may face a penalty. The Home Office also has the authority to change bail conditions without the involvement of a judge. If bail requirements are not followed, applicants may face stricter conditions such as more frequent reporting, criminal charges, or detention. Individuals granted bail are still subject to further detention, and bail expires when the person is granted additional leave to remain removed from or otherwise leave the UK, or the Secretary of State considers the person no longer liable for detention and considers a deportation order against them.