Detainees have a right to be informed of the reason for their detention. This is generally done by ticking a box on a standard list of reasons, and sometimes is inaccurate or omitted. The reasons for detention should be subject to regular monthly reviews by detention officers, and a breach of this requirement can make the detention unlawful if the effect is that the continued legality of the detention has not been effectively considered.
A detainee can apply for bail at any time, although if they are detained while their application is being considered they must have been in the UK for seven calendar days. Applications can be made to the Chief Immigration Officer (CIO), who is part of the Home Office or to the FTT (IAC). Since the decision to detain was made by the Home Office, it is not common for bail to be granted by the CIO.
A Tribunal is prevented from granting bail if removal directions are in force for a date less than 14 days from the application, unless the Secretary of State consents to bail. The Immigration Act 2014 also prohibits the Tribunal from granting bail at a hearing within 28 days of a previous refusal of bail unless there is a proven change of circumstances.
A bail application to the Tribunal involves a hearing before an immigration judge. The Home Office is required to provide a summary before the hearing of the reasons for opposing bail. Studies of bail hearings show that in practice the summary may occasionally be late, or non-existent, but the most persistent problem is reliance on standard reasons without evidence that they apply to the particular applicant. The hearing may then focus on unsubstantiated risks of absconding or offending but fail to focus on how long the person has been detained and what prospect there is of the Home Office being able to arrange their removal from the UK, matters which are critical to the lawfulness of detention. First-Tier Tribunal judges hearing bail applications do not have the jurisdiction to consider the lawfulness of detention, and there is no full reasoned decision given by the judge.
Bail hearing centres may be far removed from the detention centre, and the use of video conference systems has become routine. While this avoids long journeys for the detainee, the lack of personal contact with the judge, and problems in quality of sound and visual transmission are also experienced as obstacles to an effective hearing. Detainees in prisons may have video links cut off before the end of the bail hearing if it continues over 60 minutes. Technical problems may compound the difficulty of speaking through an interpreter. In video conferencing cases the lawyer is only allowed 10 minutes to speak with their client before the hearing. This is insufficient.
Bail hearings are timetabled so that several can be heard in one day, and this creates pressure on the proceedings, sometimes with the result that an interpreter is not given time to interpret everything that is said. BID has reported delays in providing a bail address.
Friends or family can stand as sureties for the applicant, which means that they undertake to ensure that the person reports again when they are required to, and they forfeit a sum of money if this does not happen. Sureties are not essential, but there is a tendency to require them. There is no concept of continuing surety, meaning sureties who wish to continue to stand are required to travel to each hearing, even if bail is refused many times, and even if bail is granted and then applied for again after a further detention without any breach of conditions by the asylum seeker. Repeat detentions can occur for asylum seekers when further submissions are refused, and they are detained with a view to removal, but without giving time for them to challenge the refusal of further submissions, or else when they are detained while further submissions are being prepared but have not yet been made. Removal cannot take place while a challenge or consideration of submissions are pending, and good legal representation can mean that they are released while the challenge or consideration of new submissions takes place, only to be re-detained in the same circumstances if there is a further refusal.
Automatic bail referrals were introduced in 2018. Officials make referrals four months after initial detention started and every four months thereafter. This does not appear to have resulted in many more individuals being released from immigration detention. In February 2018 a pilot began to refer people for automatic bail hearings after two months which aims to run for a limited period (one calendar month). There has been no further announcement relating to the outcome or extension of this pilot and guidance issued in February 2020 only refers to the four month timescale for automatic bail referrals.
The lawfulness of detention may be subject to judicial review in the High Court, with the permission of that court. The criteria for lawfulness are, as mentioned above, that it is for a statutory purpose, and for approved policy reasons, and the length of detention must not be unreasonable (see section on Grounds for Detention). The lack of a statutory limit on the length of detention has consequences for the potential for effective challenge. Case law states that the length of detention must be reasonable to achieve the purpose for which the person is detained. The usual legal issue which affects the length of detention for refused asylum seekers is whether the Home Office can arrange the detainee's removal within a reasonable period. No clear and coherent case law on reasonable periods has emerged. However, the Home Office's own guidance on whether removal is 'imminent' is that ‘removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks’. Revised guidance that was issued to Immigration Judges in January 2018 advises that it is generally accepted that detention for three months would be considered a substantial period and six months a long period.
Challenges are also made to the lawfulness of detention in civil proceedings for unlawful imprisonment, when damages may be awarded.
The case law and the legal structure of challenge to immigration detention make no distinction between the detention of asylum seekers and the detention of other foreign nationals.
Supreme Court, Kambadzi v Secretary of State for the Home Department  UKSC 23.
Schedule 10 Immigration Act 2016.
Immigration Bail; Home Office February 2020, available at: https://bit.ly/32SxyGh.
High Court, R (Hardial Singh) v Governor of Durham Prison  EWHC 1 (QB) and https://bit.ly/3cEhuwe
Home Office, Enforcement Instructions and Guidance – Chapter 55, para 188.8.131.52.