This article first appeared on the Free Movement Website
On 5 April 2019 the Home Office released an updated version of its policy on the requirements people need to meet to receive accommodation and support to enable them to meet conditions of bail, whether that bail is granted by Home Office or by the Tribunal.
The process for applying for accommodation remains the same for people who have applied for asylum and are either pending a decision or have been refused asylum:
Asylum seekers and refused asylum seekers can apply for accommodation from within detention by completing form ASF1. However for applicants to succeed it is best that they show that they have already been granted bail in principle. This is because they need to show that they will be left destitute within 14 days of the ASF1 application being made.
Asylum applicants who are released on bail to the streets without an address can call the Migrant Help helpline on 0800 8000 631 to ask for urgent help under Section 98 (temporary support). Migrant Help is now designated as the agency to receive correspondence applications on all applications made under Sections 95, 96, 98 and 4(2) of the Immigration Act 1999. Migrant Help can also be contacted at [email protected]
All others who have not applied for asylum at all can apply for Paragraph 9, Schedule 10 ‘exceptional circumstances’ accommodation (under Immigration Act 2016): There are two categories:
- Those who have not committed a criminal offence (the new Home Office form is not clear if this category includes those who have committed offences but are not facing deportation) need to complete new Form 409 Application for Immigration Bail Accommodation (Exceptional Circumstances – Article 3). This is a 27 page form similar to the ASF1 that includes various issues that the applicant needs to disclose including:
- Contact details and details of the address where the applicant has previously lived. This will no doubt assist in an assessment of whether or not a person will face destitution if released on bail. Those with applications made to the Home Office under Article 8 of the European Convention on Human Rights (the right to a Family or a Private Life) will need to be aware of their substantial immigration claim and consider the need to explain why they cannot reside with or be supported by anyone mentioned as being part of a network of support in the UK.
- Details of previous or current income and assets in the UK and abroad.
- Evidence of steps taken to leave the UK. Applicants need to understand the potential consequences of both non-cooperation and cooperation with the documentation process and the steps they might need to take to evidence the latter.
Those who have committed a criminal offence (it is unclear if this includes people who are not facing deportation) can include submissions about their need for ‘exceptional circumstances’ accommodation as part of their grounds for bail to the Home Office using Form 401 or to the Tribunal using Form B1. There is otherwise no form or formal process for this category to apply for accommodation.
Home Office policy provides some indication as to what is to be considered for those who have committed offences but remains unclear in certain respects:
- Issues to be considered will almost certainly include those identified in new Form 409 for ‘non-offenders’ i.e. monetary and other assets; whether anyone could be excepted to support them; the steps they may or may not be taking to leave the UK; medical issues and evidence to support their explanation for being unable to leave the UK.
- Submissions will also need to focus on the level of risk of harm a person presents. A high risk is identified by the Home Office Bail Policy as a factor in favour of being granted support (where this will not be provided by the bail Probation Service).
Delays and the provision of accommodation
It is advisable to ensure that at the outset of a person’s immigration detention a copy of the Probation Service’s ‘release plan’ is obtained from the Home Office or the Offender Manager. This will address factors including accommodation needs and whether or not a person meets the Home Office’s ‘exceptional criteria’ (see above).
All those who are still under licence must have their address approved by the Probation Service. Unfortunately Home Office policy states that this can take ‘approximately 9 weeks’. People whose licences have expired will often find that the Home Office will then seek the additional advice of the Police (who may not be entirely motivated by the idea of assisting rehabilitation).
Those designated as presenting a high risk of harm to others will require Level 3 ‘complex bail dispersal accommodation’ (rather than Level 2 ‘standard dispersal accommodation’ or Level ‘initial accommodation. Level 3 accommodation in particular is often said by the Home Office to be extremely hard to source, resulting in individuals sometimes serving many times longer than the term of their original prison sentence.
Bail in Principle
Practitioners should also be aware that the Home Office effectively confirms its acceptance of bail in principle being granted to bail applicants by making reference to Paragraph 3(8) of Schedule 10, stating that the authority granting bail “may use the provision to postpone the start of a grant of immigration bail until appropriate accommodation is available. It is anticipated there will be a delay”.
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