20 December 2012
Recommendations from BID's new report on bail decision making, 'The Liberty Deficit'
In our first report on bail decision making ('A Nice Judge on a Good Day: Immigration bail and the right to liberty ' (2010), we touched on the inability of the bail system to respond adequately to the needs of foreign national ex-prisoners.
In this second report, 'The Liberty Deficit: long term detention and baill decision making' we are more explicit about this. We describe a mutually reinforcing process involving failures on the part of both the UK Border Agency and the Tribunal in respect of the long term detention of ex-offenders.
We highlight the liberty deficit that has emerged where the Secretary of State’s routine unwillingness or inability to provide evidence to substantiate assertions made in opposition to release on bail, meets the apparent unwillingness of the Tribunal to demand evidence for these assertions. This justice gap is especially concerning in light of the fundamentally cross-tribunal principle contained in the Asylum and Immigration Tribunal (Procedure) Rules (2005) that:
“Subject to section 108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties” (Section 51 (7)).
BID makes a number of recommendations to the First Tier Tribunal, the UK Border Agency, and other agencies. These are listed below. The full report is available here.
Barriers arising from the use of videolink bail hearing
1. When funds allow, the specification of videolink technology should be raised and infrastructure upgraded in Tribunal hearing centres and immigration removal centres, so as to improve the videolink experience and enable the full participation of all parties.
2. The Tribunal should double the time available for representatives to consult with their client from 10 minutes to 20 minutes, or longer where an interpreter is required.
3. Where a joint bail application is made by an adult family, we recommend that counsel be allowed twenty minutes for consultation with each of the joint applicants, to run consecutively.
4. Tribunal hearing centres should be linked to each other via videolink to allow sureties to appear in the hearing centre nearest them regardless of where the bail hearing is being heard.
5. The tribunal should consider the possibility of separate videoconference booths for the use of barristers and their detained clients (of the sort found at magistrates’ courts), which could then be booked for longer periods outside the timings of court listings.
6. There should be no upper time limit to the length of videolink hearings from prisons for the purpose of immigration bail hearings. If that is genuinely not practical as a result of typical prison regimes then videolink hearings from prisons to Tribunal hearing centres should be capped at 120 minutes rather than 60 minutes.
7. The Tribunal must facilitate complete, comprehensive interpretation of bail proceedings in their entirety, including evidence discussed and arguments, even - and especially - in those bail applications where applicants have long detention histories, complex immigration cases, and where the volume of evidence and argument before the tribunal is likely to be highest.
8. When assessing sureties the Tribunal should no longer require geographical proximity to the bail address where an applicant is reliant on Section 4 (1)(c ) bail accommodation, since under the new COMPASS accommodation contracts this may be impossible for a significant number of bail applicants from now on.
9. As in the criminal justice system, immigration bail sureties should not be expected by the Tribunal to exercise any control over the commission of further offences by the bail applicant.
10. The Tribunal must follow bail guidance in relation to financial requirements made of sureties, which must always be proportionate to the means of the surety, and must not create additional and unnecessary conditions for sureties.
11. The Tribunal should consider the use of continuous sureties in immigration bail applications.
Case management and length of listings
12. The First Tier Tribunal should again review the number of bail applications listed for each session, so as to ensure adequate time for legal representatives to take instructions, comprehensive interpretation of hearings in their entirety, and for consideration of greater volumes of evidence especially where the applicant has been detained long term. The number of bail hearings on a list may need to be reduced.
13. The number of bail hearings listed for each session should also be reviewed to ensure that decision makers have sufficient preparation time. There may be value in identifying those bail applicants who have been held in detention for more than 6 months, and listing them for hearing during sessions where fewer than six bail cases are to be heard.
Disclosure of evidence
14. Rule 51 (7) of the Tribunal Procedure Rules (“subject to s108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties”) should be rigorously enforced.
15. As a general principle the UKBA must fulfil its duty to assist the Tribunal and must therefore disclose all evidence upon which it relies to oppose release on bail. The Tribunal must use adjournments and directions to order disclosure where it is not forthcoming.
16. UKBA should append evidence for arguments made in a bail summary with the bail summary at the point at which it is served on the tribunal and the applicant in order to allow proper consideration.
17. The tribunal should use its existing powers to direct both parties to provide evidence and information, and its powers to grant bail in principle or to adjourn a hearing to allow for practical barriers to be dealt with. It can no longer be considered acceptable for the tribunal to avoid this responsibility by in effect ‘returning’ a person to detention where the option exists for the use of adjournment, directions to parties, and bail in principle.
Specific types of evidence
18. The Tribunal must provide written reasons for reliance on the SSHD’s opinion on risk of reoffending above any such assessment generated in the criminal justice system by NOMS.
19. The statutory restriction on the grant of bail to prevent future offending is inappropriate and should be repealed.
20. Where high risk of harm to the public on release is argued, the Tribunal should always seek clarification of which type of structured risk assessment and management system is being relied upon by the SSHD (the UKBA Harm Matrix removal prioritisation scoring system, or ‘serious harm’ in the criminal justice sense measured using OASys or similar), and require supporting evidence.
21. The Tribunal should not rely on unsubstantiated arguments in relation to adverse behaviour in detention on the part of the applicant so long as the information systems in use by IRC contractors and UKBA fail to distinguish between victim and aggressor in regular reporting, or consider mitigating factors such as mental illness.
22. Imminence of removal on its own should never be the sole reason for refusing release on bail. In order for removal to be considered imminent the Tribunal should always require evidence of a flight booking and written confirmation from an embassy or High Commission that they will issue a travel document within a specified time. Both the Tribunal and the SSHD should consider imminent removal only those removals that can take place within four weeks, in line with the UKBA’s own guidance.
23. Assertions of high absconding risk should be substantiated before the Tribunal in the face of Home Office findings of absconding rates of only around 10%, and the arguments of both parties in relation to absconding risk should be set out in any written decision.
24. Once a detainee’s licence period has expired, unless they are MAPPA nominals or there is a restraining order, Sexual Offences Protection Order or other ancillary order in place, their presumed level of risk of re-offending and risk of harm to the public on release should no longer be part of bail decision making without a fresh assessment using a recognised structured risk assessment process such as OASys.
25. Judicial decision makers in the First Tier Tribunal (IAC) should be provided at the earliest opportunity with expert training on the assessment and management of criminal risk, provided by NOMS, to include advice on the weight to give to aspects of risk assessment and which order in which to consider them, to ensure adequate risk management on release.
26. The Tribunal and NOMS should jointly determine how offender management information could best be provided to the tribunal once a Licence has expired.
27. All agencies must be prepared to work together to put safeguards in place where the genuinely highest risk individuals cannot be removed from the UK within a reasonable time and must therefore be released, since such individuals cannot be held indefinitely.
28. The UKBA must immediately comply with both the bail guidance and its own agreement with the National Offender Management Service in relation to disclosure of the NOMS1 form containing offender management information.
29. The NOMS1 form should be served on both the Tribunal and the representative alongside the bail summary on the day preceding the bail hearing. Where a bail applicant is unrepresented, the NOMS1 form should be provided directly to the applicant in the removal centre by fax along with the bail summary.
Moving detention cases towards resolution
30. The Tribunal Procedure Rules should contain a requirement that there must be a record of proceedings noting details of evidence presented, arguments made, directions given to parties, and detailed reasons for the decision to refuse release.
31. The Tribunal Procedure Rules should contain a requirement for all jurisdictions that, on application, all parties must be provided with a copy of the record of proceedings and judge’s note of evidence, as would anyway be required if the decision in question was to be subject to judicial review.
32. The Tribunal should take full advantage of its own complaints system to improve bail decision making, in consultation with stakeholders.
33. Written bail decisions should outline what further steps might need to be taken by either party in the case before a subsequent bail hearing or within a set time scale (for example, steps to be taken by either party in relation to a travel document application).
34. Written bail decisions should detail arguments presented by the UKBA and the applicant as well as the reasons for refusing bail.
35. The Refusal of Bail notice should be redesigned. At present the notice is structured to prompt inclusion only of negative information about the applicant that has prompted the refusal of bail, yet the Refusal of Bail notice may be relied on by UKBA or the higher courts without sight of findings during the bail hearing that are advantageous to the applicant.
36. The Tribunal should make greater use of its power to grant bail in principle pending the provision of further information to the Tribunal within 48 hours, especially where this concerns surety paperwork that can easily be provided, and where bail would otherwise be refused.
37. The Tribunal should make greater use of its power to adjourn bail hearings.
38. The Tribunal should make greater use of its power to give directions to parties. Directions should be noted in the Refusal of Bail notice and the judge’s record of proceedings.
39. The Legal Service Commission should ensure that there is no financial disincentive in the legal aid fee structure for providers of immigration advice to adequately explore issues relating to criminal risk and delays in the provision of UKBA Section 4 (1)(c) bail accommodation.
40. The statutory restriction on the grant of bail that relates to the mental health of the bail applicant should be removed. Immigration detention should never be used for the purpose of medical treatment.
41. The issue of a detainee’s mental health should be ‘neutral’ in relation to decisions in relation to release on bail.
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