20 December 2012
BID's view on determinations of unlawful detention being moved to the First Tier Tribunal: an extract from our new research report 'The Liberty Deficit: long-term detention & bail decision making'
The current President’s Bail Guidance for judges states:
“A First-tier Tribunal Judge’s power is simply to grant bail, which is itself a restriction of liberty. The judge has no power to declare the detention unlawful and give any relief if it is considered to be; such matters need to be decided in the Administrative Court or in a claim for damages. Given the wide ranging powers of the immigration authorities in relation to the detention of non-nationals, First-tier Tribunal Judges should normally assume that a person applying for immigration bail has been detained in accordance with the immigration laws. However, it will be a good reason to grant bail if for one reason or another continued detention might well be successfully challenged elsewhere” (HMCTS, 2012: paragraph 5)
The bail guidance appears to be saying that the Tribunal can take legality of detention into account, indeed that it is increasingly required to take into account the likelihood that detention might be unlawful when making a decision about whether to grant bail. The guidance itself contains many points coming out of the jurisprudence on the legality of detention. Bail decisions are not necessarily but can be determinative of the lawfulness of detention.
The research findings in Chapter 3 of our report ‘The Liberty Deficit: long-term detention and bail decision making’ demonstrate that a number of the criteria that First Tier judges are required to consider when deciding whether or not to grant bail are pure lawfulness points. For example, the length of detention to date and the likely future duration of detention, and the need for the reasons given by the SSHD for the continued detention of the applicant to be specific to and demonstrate consideration of the applicant’s circumstances, not merely make a statement of general policy. In this new era of extremely long-term detention, where a bail applicant has the benefit of legal representation and has been detained for a significant period, much of the evidence submitted to the Tribunal as part of their application for release on bail may be of a similar nature and quantity to that used for unlawful detention cases in the High Court, as we show in Chapter 4 of the report.
Given these similarities, the current burden on the Administrative Court (that part of the High Court that deals with claims for unlawful detention, often following a claim for judicial review), and the lengthy delays experienced by detainees wishing to challenge the lawfulness of their detention, it is perhaps understandable that consideration is being given in some quarters to the notion of determinations of unlawful detention being moved to the First Tier Tribunal. Indeed, the perception is that the specialist tribunals are expert in their field of the law and due deference should be given in view of this. However, the lawfulness of detention is not an issue that First Tier judges in the Immigration and Asylum Chamber are particularly specialist in. While unlawful detention is not legally complicated it can be complex on factual grounds. This research has highlighted serious concerns about the reliance by the Tribunal on arguments that have not been substantiated before applicants, and BID would argue that in relation to issues of criminal risk it cannot be said at present that the First Tier Tribunal provides specialist expertise in relation to the factual content of such cases.
Bail decisions produced by the Tribunal are not full written determinations, and they do not make findings or lay out the factual evidence of both parties. Chapter 3 of ‘The Liberty Deficit’ report shows that the content of written bail decisions is largely shaped by the format of Refusal of Bail notices. Bail decisions fail to provide the full account necessary for assessing the development of a case that is required when deciding whether continued detention is lawful. This must mean that bail decisions are to be treated with great care by any party considering evidence as to whether or not detention has become unlawful.
Nevertheless, the Tribunal provides all parties to a case with an opportunity for independent assessment of the issues relating to a person’s application for bail and for release from detention. If the recommendations made by BID as a result of this research were to be implemented, meaning among other things that evidence were to be properly accounted for in fully determined decisions, and if directions were issued by the Tribunal for steps to be taken by both parties to a case, the resulting bail decisions could make a contribution to an eventual assessment of the lawfulness of continued detention in a particular case.
This new research has also shown that as things stand, the First Tier Tribunal (IAC) environment is characterised by constraints on the time available for bail hearings dictated by case management needs, including the need to list bail hearings within a short amount of time, and complicated by the practicalities of video links and the necessity to use interpreters. This report has also shown that insufficient time may be available for consideration of the often sizeable bundles submitted by long-term detainees in support of their application for release. If the Tribunal were to strictly enforce paragraph 51 (7) of the Tribunal Procedure Rules, and if the UKBA were to begin to substantiate assertions made in bail summaries, the pressure on available time in bail hearings would only increase. The Tribunal is currently able to list bail applications and deliver decisions quickly, but it appears to do so in the absence of substantiated arguments on the part of the SSHD in too many cases, most notably where issues of level of criminal risk on release must be considered.
While immigration detention of only one day may be held to be unlawful, it is those people who have been held for several months or years without removal where the need to consider lawfulness is most urgent. However, in BID’s view the First Tier Tribunal of the Immigration and Asylum Chamber is not the appropriate place for this to be done. Bail decision-making as currently delivered in the First Tier Tribunal, including in relation to those issues touching on lawfulness of detention, is certainly fast and efficient, but it is not, in BID’s view, necessarily accurate or fair. In addition, there is a serious risk that if the tribunal system is allowed to determine unlawful detention, then this can create an issue estoppel in the future (when perhaps new evidence has emerged), therefore preventing a detainee from making a claim for damages for unlawful detention.
BID believes 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 for the First Tier Tribunal IAC to have a role in determining the continued lawfulness of detention.
 President of the First Tier Tribunal Immigration and Asylum Chamber, (2012), ‘Presidential Guidance Note No 1 of 2012: Bail guidance for judges presiding over immigration and asylum hearings’. Available via HM Courts & Tribunals Service website at http://www.justice.gov.uk/tribunals/immigration-asylum/rules-and-legislation
 Ibid, paragraphs 16 through 20.
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