Immigration bail (accessible)

Question 1

About this guidance

Accepted Answer

This guidance tells decision makers about immigration bail as provided for under Schedule 10 to the Immigration Act 2016. Reference to decision makers in this guidance means all persons acting on behalf of the Secretary of State on immigration bail matters; this includes immigration officers.

With immediate effect and until further notice, the use of:

informing detained persons of their immigration bail rights
meeting bail conditions: Secretary of State support as per Paragraph 9 of Schedule 10

as set out in this instruction is suspended and the separate Immigration Bail Interim Guidance must be used instead.

Contacts

If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors, then email Immigration Bail Policy.

If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then you can email the Guidance Rules and Forms team.

Publication

Below is information on when this version of the guidance was published:

version 20.0
published for Home Office staff on 23 October 2024

Changes from last version of this guidance

This guidance has been updated to:

reflect the correct number of reporting centres following the closure of Becket House
include information about the Immigration Salary List, which has replaced the Shortage Occupations List in the ‘Immigration bail conditions: restrictions on work, occupation or studies’ section
include information about location recording in the Digital Reporting condition section.

Schedule 10 to the Immigration Act 2016

Question 2

Introduction

Accepted Answer

This page introduces you to the single power of immigration bail.

It is published policy that whilst detention is used to maintain effective immigration control, there is a presumption in favour of liberty and, wherever possible, alternatives to detention must be used.

Schedule 10 replaced the various pre-existing alternatives to detention (temporary admission, temporary release on bail and release on restrictions) by a single power to grant immigration bail.

This guidance applies to the use of immigration bail in cases managed by Border Force, UK Visas and Immigration, and Immigration Enforcement. It replaces all previous guidance on:

temporary admission
temporary release on bail
release on restrictions

The purpose of immigration bail is to facilitate those who have no legal basis to remain in the UK and are liable to be, or have been, detained for the purposes of removal. See: Eligibility for immigration bail.

Further information about immigration detention can be found on GOV.UK in the Detention: General Instructions.

Question 3

Transitional provisions

Accepted Answer

Commencement of Schedule 10 in 2016 introduced a single bail power whereby those subject to one of the previous alternatives to detention will retrospectively be considered as having been granted immigration bail, and subject to the same conditions unless they need to be reviewed.

Further information can be found under Transitional arrangements.

Question 4

Eligibility for immigration bail

Accepted Answer

This page tells you about those who are eligible for immigration bail.

Any person detained, or liable to be detained, under any of the following provisions is eligible to be granted immigration bail by the Secretary of State:

paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention by immigration officers of persons liable to examination or removal)
paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)
section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State of persons liable to examination or removal)
section 36(1) of the UK Borders Act 2007 (detention pending automatic deportation)

A person who is liable to be detained under any of the above provisions can be granted, and remain on, immigration bail even if they can no longer be lawfully detained, for example, where there is no realistic prospect of their removal taking place within a reasonable time.

The above extends to those against whom the Secretary of State is considering making a deportation order under section 5(1) of the Immigration Act 1971 and are no longer liable to be detained.

Question 5

Power to grant immigration bail

Accepted Answer

This page tells you about the legal powers to grant immigration bail. It also tells you when a grant of immigration bail begins and when it ends.

See also: Level of authority to grant or refuse immigration bail.

The statutory power to grant immigration bail is in paragraph 1 of Schedule 10.

The power to grant immigration bail is available to the Secretary of State (in practice, a person acting on behalf of the Secretary of State, including an immigration officer) if a person is:

detained under any of the detention powers listed in the bullet points in Eligibility for immigration bail
liable to be detained under any of the detention powers listed in the bullet points in Eligibility for immigration bail

The Secretary of State may consider granting immigration bail if officials appointed on their behalf think it is appropriate for the person on a case-by-case basis, even if they have not submitted an application for bail. If a detained person wishes to apply to the Secretary of State for a grant of immigration bail, the person must do so using the BAIL 401 application form (which can be found on Atlas). In most cases, bail will be granted using the BAIL 201 – notification of grant / variation of immigration bail form (which can be found on Atlas). However, some casework refusal notices also contain the option for granting immigration bail.

The power to grant immigration bail is available to the First-tier Tribunal if a person is already detained under any of the powers in paragraph 1(1) of Schedule 10 (for further information see: Eligibility for immigration bail). The Tribunal has no power to grant immigration bail to a person who is liable to detention but not detained. For further information, see Statutory limitations on First-tier Tribunal power to grant immigration bail.

A detained person who wishes to be granted bail by the Tribunal must submit an application in writing to the Tribunal using Form B1.

The fact that a person has been granted immigration bail does not prevent the person’s possible arrest and subsequent detention under one of the provisions mentioned in Eligibility for immigration bail. This allows a person on immigration bail to be detained pending an enforced removal, for example, where the person has been granted bail whilst waiting for a travel document which then becomes available.

Duration of immigration bail

The duration of immigration bail lasts from the point a person is granted to when it ends. These events are defined in paragraphs 1 and 3 of Schedule 10.

A grant of immigration bail starts from the time that is stated on the notice granting it. The notice may state that bail is conditional on certain arrangements being in place, and that it starts once those arrangements have been made.

A grant of immigration bail ends when the person to whom it is granted is:

no longer liable to be detained and the Secretary of State is not considering whether to make a deportation order against the person
granted leave to enter or remain in the UK
detained under one of the provisions mentioned in Eligibility for immigration bail
removed from, or otherwise leaves, the UK

Question 6

Conditions of immigration bail

Accepted Answer

This page tells you about the conditions that must be attached to a grant of immigration bail.

Immigration bail conditions: general

Immigration bail conditions: appearance before Secretary of State or Tribunal

This is for a one-off event and not for a regular reporting condition, which is separate (for further information, see Immigration bail conditions: reporting).

Examples of when a grant of immigration bail subject to a condition requiring appearance before the Secretary of State at a required time and place may be used include for:

self check-in returns, to allow collection of passports, tickets or other documents from the airport and for departure
attending travel documentation or other application-related interviews at the Home Office or a place of immigration detention
attending for return flights following refusal of leave to enter at a port of entry

Decision makers must not use this condition to require a person to attend an Embassy, High Commission or Consulate for re-documentation for removal purposes, or any other voluntary action.

A condition requiring appearance before the Tribunal at a required time and place would usually be necessary where a person has on-going proceedings before the Tribunal. A condition of this kind will generally be appropriate where the Tribunal grants bail rather than the Secretary of State.

Self check-in

Where this condition is used for a self check-in return:

the Notification of grant/variation of immigration bail notice (BAIL 201) must be given to the individual
the self check-in notice (BAIL 202(SCI)) must be given to the appropriate carrier when requested

Immigration bail conditions: restrictions on work, occupation or studies

Work or occupation

If the person being granted immigration bail does not have any permission to enter or remain in the UK, it will be appropriate to impose a bail condition restricting work in the majority of cases.

It may be appropriate to impose an immigration bail condition that restricts a person’s work or occupation if that person had leave permitting these activities, but that leave has been curtailed. It may also, depending on the facts of the individual case, be appropriate for European Economic Area citizens who are granted immigration bail pending deportation action.

An asylum seeker, or a failed asylum seeker with outstanding protection-based further submissions, whose claim has been outstanding for more than 12 months through no fault of their own, may apply for permission to work. Those who were granted permission to work before 4 April 2024 were restricted to jobs on the Shortage Occupation List. On 4 April 2024 the Shortage Occupation List was replaced by the Immigration Salary List (ISL). Any applications for permission to work which are received on or after this date are subject to the ISL. This means that where an individual is granted permission to work, they will need to find employment that is listed in the ISL. (For further information see Immigration Rules -Immigration Rules Appendix Immigration Salary List)

Study

In this context, ‘study’ is taken to mean primary and secondary school for children and young adults up to and including the age of 18, and courses which may lead to a qualification for adults, including English for Speakers of Other Languages (ESOL) courses. However, children up until the age of 18 are entitled to education, and so should be set a condition permitting study.

A person does not have to be given a study condition permitting or prohibiting study. They must have at least one other condition of bail. If there is any doubt over whether study should be restricted, no study condition should be applied. Either leave the box on the BAIL 201 notice (or relevant refusal notice) blank or delete the study condition.

Bail conditions prohibiting study must be authorised at a minimum grade of HEO / CIO equivalent grades. Consideration must be given to whether the individual is already studying or wishes to commence a course, the length of course or whether the individual is undertaking significant exams, for example A levels or their equivalents or university finals, and what the timescale is when taking removal action into account, and therefore the impact of a study restriction.

Children

Children can access education services until the age of 18, and they must be permitted to study up to and including the final year of school in which they turn 18. You should not set a study condition that they must attend school. However, you can, where dealing with a family group, specify that a child may only attend a named school (the one they already attend or will be attending) to ensure a family stays within a particular location.

Where Border Force officers refuse entry to children at the border who are coming to the UK to study at state schools but who do not have the correct Entry Clearance (EC), then if they are being granted immigration bail, no study condition should be applied to them. This is because all children under the age of 18 are entitled to free education, even where they are liable for removal from the UK.

Asylum seekers

There is nothing in the Immigration Rules to prevent asylum seekers studying. Therefore, anyone who claims asylum should not have a study condition applied to them.

A condition prohibiting study may be applied at the point an asylum seeker becomes appeal rights exhausted, if considered necessary on the facts of the individual case. The decision maker must have due regard to the matters under Exercising the power to grant immigration bail. This includes those asylum seekers who are also immigration offenders (for example, illegal entrants via clandestine entry), but see below for steps to take to check if they are former unaccompanied asylum-seeking children (UASC) or unaccompanied children.

If an asylum seeker who has exhausted their appeal rights submits further representations and these are accepted as a fresh claim, the decision maker must lift any study restriction applied to the person. If an asylum seeker who has exhausted

their appeal rights submits further representations and a decision on whether these constitute a fresh claim remains pending beyond the usual period of time for making such a decision, the decision maker must consider lifting any study restriction applied to the person.

Former UASC care leavers who have turned 18 and who have an application or appeal pending or with ongoing litigation in respect of a decision in relation to their asylum claim, must be permitted to study. They should continue to be permitted to study until they become appeal rights exhausted (ARE). This includes those who did not receive an adverse decision on their application until after turning 17 and a half and so were not granted temporary UASC leave, but still have a right of appeal.

In all cases where someone becomes ARE and consideration is being given to prohibiting study, decision makers must take the following steps:

Check whether the individual arrived in the UK as a UASC/unaccompanied child (and therefore may still be in receipt of ‘leaving care’ support, including education, from the local authority (LA)). You should check Atlas to determine this.
If they have arrived in the UK as a UASC, then confirm with the individual whether they are still in receipt of ‘leaving care’ support, including support in education. If so, then do not apply any study condition. If there is doubt about whether the LA is still providing ‘leaving care’ support, then you should exercise caution and should not apply a study condition to them at that time pending further enquires with the LA.
If they have not arrived as a UASC/unaccompanied child, then they will not be in receipt of ‘leaving care’ support and a ‘no study’ condition may be applied when they become ARE.
Consider the impact of a study restriction on the facts of the individual case.

Admissions to higher education (HE) institutions are a matter for the institutions concerned with policies varying between institutions.

Under section 71 of the Nationality, Immigration and Asylum Act 2002, decision makers can apply a study condition to individuals who claim asylum when they have valid leave to enter or remain in another category. This should be in line with the person’s leave, so a Tier 4 student must be permitted to study. These individuals may be restricted to studying at a particular institution. For further information see Asylum claims from persons with leave.

Immigration offenders

Non-asylum seeking adult immigration offenders who are liable to removal should normally be prohibited from studying.

Deportation cases

Where a person is granted bail pending deportation (this includes pending the making of a deportation order (DO) as well as in pursuit of a DO), if they are under 18 or turning 18 in their final school year, they must not be prohibited from studying.

If they are over 18, they should normally be prohibited from studying, unless they are an asylum seeker with an application or appeal pending and the DO is not signed and in force. However, if a licence condition requires attendance on a course, they must be given permission to study, but limited to ‘as specified in your licence conditions’. Any decision to prohibit a person from studying who is subject to a deportation order must be made on the basis of the particular facts of the case.

The study condition can also be used in national security cases where a restriction on studying may be imposed as part of a package to manage those with whom an individual is able to associate.

Study condition: quick guide on usage

This must not be used at a stand-alone guide, as the suggested condition may not be appropriate in every case of a particular status. Use must be in conjunction with the detailed guidance on use of the study condition above.

Status	Suggested bail condition	Further information
Under 18s (general)	Permit Study	Including those who turn 18 in final school year
Under 18s refused LTE for study purpose	Do not set a study condition	Border Force – where intending to study at state schools without valid EC
Over 18s refused LTE	Prohibit Study	Border Force – where a non- visa national visitor is refused LTE and removal directions are in place and their removal from the UK is imminent.
Over 18s cancellation of an Entry Clearance (EC) or biometric residence permit (BRP): change of circumstances, false representations or failure, to disclose material facts	Do not set a study condition	Border Force – where an EC or BRP has been cancelled and an administrative review application and an administrative review decision are pending.
Over 18s cancellation of an EC or BRP: change of purpose	Prohibit Study	Border Force – where an EC or BRP has been cancelled for a change of purpose there will be no right to an administrative review. Removal directions are in place and their removal from the UK is imminent.
Former UASC care leavers	Permit Study	Until post-ARE
Care leaver	Permit Study	Until post-ARE
Adult asylum seeker (including clandestine entrants)	Do not set a study condition	Admissions to HE institutions are a matter for the institutions concerned with policies varying between institutions
Section 71 asylum seeker	Any condition should reflect conditions of leave	Do not use bail to remove a pre- existing condition unless circumstances change.
Adult immigration offender (not asylum seeker)	Prohibit Study	Min CIO / HEO authorisation. Consider any exams etc.
Post-ARE (other than care leavers)	Prohibit Study	Min CIO / HEO authorisation. Consider any exams, etc. Follow steps to check if they arrived in the UK as a UASC / unaccompanied child
Post-ARE UASC/unaccompanied child in receipt of ‘leaving care’ support	Do not set a study condition	Follow steps to check if they arrived in the UK as a UASC / unaccompanied child
Deportation – under 18	Do not set a study condition	Including those who turn 18 in final school year
Deportation – adult (no asylum claim)	Prohibit Study	Min CIO / HEO authorisation. But consider any exams
Deportation – adult (DO not signed or in force, outstanding asylum claim/appeal)	Do not set a study condition	Until ARE or DO signed and in force
Deportation – DO signed and in force	Prohibit Study	Min CIO / HEO authorisation
Deportation – prison licence	Permit Study	Limited to ‘as specified in the licence conditions’

Immigration bail conditions: residence

It will not usually be necessary to impose a residence condition. A residence condition should only usually be imposed where residence at a particular address is necessary to enable a high level of contact or mitigate against a serious risk of non- compliance. This is more likely where the person poses a high risk of harm to the public on the basis of criminality or in cases concerning national security.

This does not mean that people granted immigration bail do not need to provide a contact address and they can, for example, be subject to a condition which requires them to keep the Home Office informed of their contact details, including their current place of residence. If a person who is detained is not able to provide a bail address, decision makers may only use this as grounds for opposing bail if they consider a condition requiring the person to live at a particular address to be necessary and the individual does not qualify for Home Office support.

Asylum seekers and failed asylum seekers accommodated by the Home Office under section 95, 98 and 4(2) of the Immigration and Asylum Act 1999 do not need

to be subject to a residence condition unless there are specific reasons why they must live at a particular address. Where this is the case, decision makers may impose a residence condition specifying that they live at ‘an address which will be separately notified to you by your accommodation provider’.

Decision makers must not apply a residence condition to a grant of immigration bail if both the following apply:

the individual is disqualified from renting – individuals who require leave to enter or remain but do not have it are disqualified from renting unless they have permission to rent (permission to rent currently only applies if the address is in England)
the address in question is ‘private rented property’, that is, accommodation covered by a residential tenancy agreement as defined by section 20 of the Immigration Act 2014 (this means that rent must be being paid for the accommodation, although this rent does not have to be the market rate nor paid by the disqualified person)

Decision makers must also not apply a residence condition to a grant of immigration bail if the Home Office is serving a civil penalty Referral Notice or Notice of Letting to a Disqualified Person (NLDP) on a landlord at the address in question.

When considering if it is appropriate to set a residence condition, decision makers may also wish to consider any landlord civil penalties or NLDPs served on the landlord of the property in question as relevant factors in reaching a decision.

When considering whether to set a residence condition requiring an individual to live in private rented property, decision makers must consider any case against the Permission to rent criteria which set out where the Home Office will grant permission to rent to migrants who do not have a right to rent. If the person meets one or more of the criteria, they may be granted permission to rent in accordance with the guidance.

Full guidance on permission to rent can be found in the Permission to rent criteria.

Decision makers must consider cases on what is reasonably apparent on the evidence clearly available, including any information which was received with any enquiry about permission to rent.

Residence

Permission to rent will normally be granted to individuals who have been granted bail by an immigration tribunal or the courts, which contains a residence condition and/or electronic monitoring condition.

Presenting Officers will manage immigration bail applications in the normal way (see: Immigration bail: First-tier Tribunal) and consider whether the Home Office should oppose any application. Where the Tribunal or court is minded to grant immigration bail despite Home Office concerns, Presenting Officers may provide the courts with assurance that permission to rent will be granted and Atlas updated immediately so that any check by a landlord can be managed quickly (the landlord will contact the Home Office landlord’s checking service in order to establish that they may rent to the bailed person).

Residence condition: referring cases to the Immigration Enforcement (IE) Evictions Team

Where a bail application has been received which meets the criteria set out below, the decision maker must refer it to the IE Evictions Team for consideration of whether a Notice of Letting to a Disqualified Person should be served.

Referrals should be made when a bail application is received and all of the following conditions apply:

a residential address has been provided and the accommodation is covered by a residential agreement defined by section 20 of the Immigration Act 2014
rent is being paid (this does not have to be market rate nor being paid by the disqualified person)
the individual requires leave to enter or leave to remain and does not have it
the individual does not qualify for Permission to Rent

For family cases, (a family is defined as having at least one or more children under 18 years of age) cases should be referred if the family was previously complying with the family returns process but has since dropped out due to non-compliance. Family cases where the family is complying with the Family Returns Process, or where the family has never been within that process, need not be referred.

When considering bail in the field, Immigration Compliance and Enforcement (ICE) teams should routinely consider the service of an NLDP and Right to Rent Referral Notice in line with guidance on these measures.

Immigration bail conditions: reporting

When considering imposing reporting conditions, you must consider the person’s vulnerability, removability, any interventions necessary to facilitate case progression/conclusion or prompt enforcement action, risk of absconding and assessed risk of harm to the general public when deciding the type and frequency of any reporting.

There are 3 methods of reporting:

in person reporting at a reporting centre or police station
telephone reporting
digital reporting

It is possible to for a person to be placed on more than one type of reporting. For further information: Reporting and Offender Management.

Reporting centres

An in person reporting condition, if imposed, should normally require a person to report to an immigration reporting centre. The Home Office has 13 immigration reporting centres in the London and South, North, Midlands and Wales, and Scotland and Northern Ireland regions. Decision makers must not set a reporting condition requiring a person to report to a police station if an immigration reporting centre is available.

For further information: Reporting and Offender Management.

Reporting to police stations

If reporting to a police station is considered essential the frequency will need to be agreed between the ROM and the police station (see Reporting and Offender Management for more information).

If a person fails to attend a reporting event, the police will report this to the (ICE) team for appropriate action. The decision maker must inform the appropriate police station when a case is completed.

Telephone reporting

Telephone reporting requires an individual to be available to answer telephone calls during set dates and times at relevant stated frequencies. Telephone reporting also requires individuals to provide the Home Office with a valid mobile telephone number to enable reporting events to take place. The frequency of telephone reporting events will be set by Reporting and Offender Management (see Reporting and Offender Management for more information).

Digital reporting

Digital reporting (IBDR) requires individuals to provide the Home Office with a valid mobile telephone number and or email address to enable communications to be received and respond to such communications sent by the Home Office via those methods.

Caseworkers must ensure that the digital reporting bail condition is justifiable in order to appropriately manage the person in the community, is based on consideration of their specific case, and that it is reasonable to expect that the person will be able to comply.

The administration and operational undertaking for digital reporting is the responsibility of the Immigration Bail Digital Reporting (IBDR) team, however where a case owner exists, it is the responsibility of the case owner to ensure that the digital reporting bail condition is appropriate.

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Consideration of digital reporting

There are no general exclusions to any individuals in relation to a digital reporting bail condition. However, it is more likely to be suitable where a person has demonstrated continued compliance with immigration bail and processes. When making a decision whether to impose this condition, decision makers must first consider all forms of reporting conditions.

Consideration must be given to the risk of harm, absconding and case status/progression weighed up against the extent of any known vulnerabilities.

Technology requirements

Persons considered for digital reporting must have access to a smart phone and, or email capabilities. Digital reporting is possible with both a smart phone and email, or either of these on their own.

If a person does not have access to either a smart phone or email, then they are not able to be placed on a digital reporting condition.

Contact detail verification

Where decision makers are making a request to the IBDR Team for a digital reporting condition to be imposed, it is the responsibility of the decision maker to ensure that the email and phone number have been previously verified or used for previous communications between the individual and the Home Office. This could be as part of the immigration enforcement process or as part of a previous application for leave to enter or remain.

Where no case owner exists (for example an automated referral from wider Home Office departments such as Asylum and Protection) the contact details will have been verified at application stage.

If no form of verification has taken place, the IBDR Team will consider the next appropriate steps.

Frequency of digital reporting

The frequency of the communications is set by the IBDR Team and may be monthly, fortnightly or weekly, dependant on the specific circumstances of the individual.

Digital reporting process

Once a person is established on digital reporting, they will receive a message to either their email address or their smart phone, or both, reminding them of their digital reporting condition which requires them to acknowledge receipt of the message by clicking on the appropriate button which appears within the message.

At this point if the recipient believes the Home Office has made a mistake, they have the opportunity to tell us that via options in the message they receive.

If an individual responds to their initial message they will receive a digital receipt and no further action will take place.

If they fail to respond to their initial message they will receive a reminder message. Failure to respond to the reminder message means that they will receive a second/final reminder message.

Failure to respond following the final reminder message, and before the end of the reporting cycle period, means that they will be considered in breach of their digital reporting condition and receive a message informing them of that and the potential consequences.

At this point the digital reporting non-compliance process will be followed.

Implementation of digital reporting

The decision maker must ensure that any individual identified for a digital reporting condition has access to the technology required.

The referring officer must ensure that the most up to date and verified contact details are input into the correct areas within Atlas as this is the source of the contact details used for digital reporting.

The referring office must then take the following actions in order for the IBDR Team to commence digital reporting.

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The IBDR team will action the request and place the individual on the next appropriate cycle and, if required, will serve the appropriate notices (Bail 201) to inform the individual of their varied bail conditions.

Identification of digital reporting condition

Persons who are subject to digital reporting can be identified by having an open bail condition relating to digital reporting within Atlas.

To identify if the person is engaging with the digital reporting condition, the engagement screen will indicate whether the person is ‘in contact’ or ‘out of contact’.

Recipient options: not for me

A person who receives a digital reporting message and does not believe it relates to them or believes that their circumstances have changed, which makes the bail condition incorrect, can inform the IBDR Team via options in the message they receive. The options available to them are:

they have been informed by a Home Office employee that they no longer have digital reporting conditions
they have recently obtained permission to stay in the UK
they have recently left the UK
they believe they have a right to reside in the UK
any other reason they believe they are not subject to digital reporting conditions

Should an individual select one of these options instead of acknowledging bail, the IBDR team will contact the case owner, or where no case owner exists investigate the circumstances and take the appropriate actions.

Changes to contact details

Following acknowledgement of their digital reporting bail condition via the required response to the digital reporting message, an individual can submit a change of contact details via the digital reporting messaging service. Only changes to email address and phone numbers can be submitted.

Should an individual submit a change of contact details, the IBDR team will contact the case owner, or where no case owner exists investigate the circumstances and take the appropriate actions, which may include verification of the new contact details.

Digital reporting: location recording

The digital reporting system may be used to record the location of the device used to report, at the time the individual complies with their digital reporting bail condition.

The application of location recording will be decided on a case-by-case basis and if it is deemed justified following an assessment of the individual circumstances, but it will generally be applied to those Foreign National Offenders who are subject to either deportation proceedings or a Deportation Order and the electronic monitoring duty as per Schedule 10 to the Immigration Act 2016.

Location recording is consent based. An individual’s location will only be recorded if they have consented. They will be asked to give their consent in the message the Home Office sends as part of the digital reporting process.

Individuals can choose not to give their consent to having their location recorded. Refusing to give consent will not affect compliance with the digital reporting immigration bail condition, should the other digital reporting requirements be met.

Use of data

Where consent is given, the digital reporting system will record and retain the location (geographic co-ordinates) of the device used, at the moment it is used to comply with the digital reporting bail condition (when the individual clicks the appropriate button within the message). It does not record an individual’s location at any other stage of the digital reporting process.

The data collected is stored for a maximum of 90 days. It is processed by the digital reporting supplier on behalf of the Home Office and is not immediately accessible by the Home Office. The supplier will notify the Home Office of any breaches of the digital reporting immigration bail condition and at that time, or when breaches of other immigration bail conditions occur, the Home Office may access the location data to support potential enforcement action.

Ceasing the digital reporting condition

If a case owner wishes to end bail (for example if the person leaves the UK or is granted some form of leave to remain), or if they wish to vary the immigration bail conditions to no longer include digital reporting, a request should be submitted to the IBDR team.

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The case owner must then take the appropriate immigration bail actions to inform the person of the changes to their immigration bail conditions as set out in Varying immigration bail conditions and take the appropriate Atlas actions.

Non-compliance with digital reporting

If the person fails to acknowledge the digital reporting messages they receive (by clicking the appropriate button within the messages) and any reminders, then they are considered in breach of their digital reporting bail condition.

The person will receive an automated notice informing them that they are now in breach of their digital reporting bail condition. Within this notice, the individual is given an opportunity to provide representations against the breach. Should representation be received these will be forwarded to the case owner or considered by the IBDR team.

The case owner will be informed that the person has breached their digital reporting condition and Atlas will be updated to reflect the lack of engagement.

The person will remain on the digital reporting condition and continue to receive their digital reporting messages until the case owner varies bail and requests the digital reporting condition is ceased.

Should the person who has failed to comply with digital reporting not have a case owner, they will remain on digital reporting until they are assigned a case owner (where a review of bail conditions will take place), or for an appropriate timescale, whilst ever they are considered to be within the active illegal population. The IBDR team can, at their discretion also take any of the actions as appropriate in line with those options available for case owners.

Immigration bail conditions: electronic monitoring

An electronic monitoring (EM) condition is a condition that requires the bailed person to cooperate with any arrangements the Secretary of State specifies for detecting and recording by electronic means one or more of the following. The bailed person’s:

location at specified times, during specified periods of time or while the arrangements are in place
presence in a location at specified times, during specified periods of time or while the arrangements are in place
absence from a location at specified times, during specified periods of time or while arrangements are in place

The arrangements with which the person must cooperate may include the bailed person:

wearing an electronic monitoring device and facilitating arrangements for its detection, which may include installation of electronic monitoring equipment at a specified address, and presenting a device upon request by an authorised officer
making specified use of an electronic monitoring device communicating in a specified manner and at specified times or during specified periods
allowing people other than the Secretary of State or the First-tier Tribunal to exercise electronic monitoring functions

EM devices

The Home Offices uses Global Positioning System (GPS) devices to electronically trail monitor a person’s movements.

Two types of EM devices that use GPS technology are available to the Home Office:

fitted device – a traditional tag fitted to the ankle – the device vibrates to alert the wearer that they need to charge the device or to warn them that they are breaching a supplementary condition, for example, entering an exclusion zone
non-fitted device – this device fits in the palm of the hand – in addition to recording trail data, it can take fingerprints and will give a sound and vibrate alert to notify the person that their biometrics must be submitted – the device reads the fingerprint and compares this to the fingerprint captured when the device was issued – although the device is not fitted to the person, they are required to carry the device with them – requests for fingerprints are made on a random basis several times throughout the day to verify that the device is being carried as required – this requirement must be included within the person’s bail conditions

The Secretary of State will make the decision regarding the type of device to be used. When considering any representations received, regard will be had to which type of device should be used, subject to the appropriateness of bail conditions proposed, but it will not be open to the person or a representative acting on their behalf to specify the device type.

Where a person is granted immigration bail subject to an EM condition, they should initially have a fitted device issued to them. However, there may be some cases where a non-fitted device may be considered a more appropriate choice based on their individual circumstances. A person may be moved between device types whilst subject to EM, and regular EM reviews will consider whether a person should be transferred between device types. Criteria for this consideration are set out below in EM and linked Supplementary Conditions: review.

Both devices require the person to regularly charge the device and comply with other conditions set out in their immigration bail notice. Failure to comply with immigration bail conditions constitutes a breach and should be considered in line with the guidance at Breach of EM immigration bail conditions.

The fitted device working in conjunction with the monitoring system is capable of monitoring whether a person complies with the supplementary conditions set out in Immigration bail supplementary conditions: curfews, inclusion or exclusion zones. These supplementary conditions will only be set and monitored where identified in a person’s immigration bail conditions, with one exception. Where a person is resident in Northern Ireland an exclusion zone will be set at the border with the Republic of Ireland, as there is no power in law to monitor a person outside of the UK. Entering the exclusion zone of the Republic of Ireland will not be treated as a breach of EM. However, case owners will need to be aware that the fact that a person has left the UK may be evidence that a person has affected their Deportation Order/Removal or where no Deportation Order has been signed, ceased the deportation/removal process.

Where the person is not issued with a HMU a mobile phone will be issued to the person to allow contact to and from the EM supplier. The EM supplier will provide the person with information relating to the use and maintenance of the mobile phone.

In very limited cases the Home Office may make an operational decision to use a Radio Frequency (RF) device rather than a GPS device but only where the Home Office deem it necessary to ensure public safety. In such cases it will be necessary to install a HMU and set a curfew in order to ensure that the device functions as intended. The individual must have an address to which they will be bailed and the owner must agree to the installation of the HMU. The length of curfew will be determined based on the individual’s personal circumstances.

Issuing devices

The Secretary of State will make the decision on place of device fitting/issue, based on practicality grounds including consideration of location and vulnerabilities. Where a person is placed on EM following a grant of bail from detention, their EM device should be fitted/issued at the point of release. However, where this is not practicable, or where the person is detained in a prison in Scotland or Northern Ireland, this may happen at the persons residence or a reporting centre.

Where a person is on immigration bail that has been varied to include EM, their device may be fitted or issued at a reporting centre, or the person’s place of residence. This will be communicated to them prior to the appointment.

For practicality reasons, to manage the roll out of non-fitted devices and ensure the service is efficient, the service will be rolled out by region with devices issued at reporting events. A roll out schedule will be provided to staff, and devices should not be issued outside of this schedule without agreement with the EM supplier, sought through the EM Hub.

Failure to comply with the appointment or fitting of a device without reasonable excuse is considered a breach of bail, see Non-compliance with immigration bail: administrative penalties.

Electronic monitoring (EM) duty

The Immigration Act 2016 Schedule 10 Part 1 paragraphs 2(2) and 2(3) place a duty on the Secretary of State to electronically monitor those on immigration bail who could be detained because they are subject to either deportation proceedings or a Deportation Order.

The duty should be applied unless its application would breach Convention rights or it would not be practical to do so (referred to within this document as ‘the duty’).

Convention rights should be considered to mean Human Rights under the Human Rights Act 1998 and European Convention on Human Rights (ECHR).

For further guidance on considering whether the duty should be applied, see Use of EM, Representations and Electronic monitoring: individuals subject to the duty.

The duty to impose EM was commenced as follows:

31 August 2021 to those newly released on immigration bail in England and Wales
31 January 2022 to those in England and Wales who had been made subject to immigration bail before 31 August 2021
31 August 2022 to those resident in Scotland and Northern Ireland

Official – sensitive: start of section

The information in this section has been removed as it is restricted for internal Home Office use only.

Official – sensitive: end of section

Use of EM

Electronic monitoring can apply to any person granted immigration bail if justified by the individual circumstances of the case. Where the duty does not apply, EM is more likely to be appropriate as a condition of bail where a person poses a high risk of harm to the public on the basis of criminality and/or in cases concerning national security but is not limited to those cases. Where the duty does not apply EM is less likely to be appropriate in any case where a person is granted immigration bail from a position of liberty (for example, where the person has had a valid in-time, in- country application refused).

EM must not be imposed:

on a person under the age of 18
following detention under Sections 37 or 41 of the Mental Health Act 1983 where the person remains subject to a supervision order

EM may be accompanied by one or more of the following supplementary conditions:

a curfew (requirement to remain at a specified address during specified periods of time)
an inclusion or exclusion zone (requirement to remain within, or not to enter, a specified area)

For guidance on applying supplementary conditions, see Immigration bail supplementary conditions: curfews, inclusion or exclusion zones.

When considering the conditions of release on immigration bail the First-tier Tribunal may impose an EM condition on a person where they think it is an appropriate condition irrespective of whether the Secretary of State has requested this.

When granting immigration bail subject to EM the First-tier Tribunal is not required to impose any supplementary conditions requested by the Secretary of State, that is, a curfew or an inclusion or exclusion zone unless it sees fit to impose such conditions.

Individual business areas have additional criteria to assist in identifying suitable cases and these are outlined in further detail below:

whether there is strong independent medical evidence to suggest that an EM condition would cause serious harm to the person’s mental or physical health
whether a claim of torture been accepted by the Home Office or a Court
whether there has been a positive conclusive grounds decision in respect of a claim to be a victim of modern slavery
whether the person’s mental capacity is deemed to be a bar to understanding the EM conditions and therefore their ability to comply for example, a person suffering with dementia
whether the individual is pregnant (18 weeks plus) or has recently given birth (within the last 3 months)
whether the individual is suffering with phlebitis or similar conditions which cause swelling of the lower legs
whether the individual is showing any signs of frailty or age-related conditions which may impact on the person’s ability to wear and/or maintain the device

Meeting one or more criteria on the above list should prompt the decision maker to consider whether EM is an appropriate course of action but does not in itself prohibit imposing such a condition. In many cases, even where there is some evidence in favour of removing EM, on balance it may still be appropriate to maintain EM due to the other factors present in the case. Where one or more of the above conditions apply there must be a clear statement why EM is still considered suitable, and this must be agreed by at least an SEO.

The above list is not exhaustive: decision makers must consider the individual circumstances of each case. If you identify a case which would otherwise appear to be suitable for EM but there are factors in the case which cause you to question suitability, please seek advice from your team leader. Where the duty applies, decisions not to apply an EM condition for reasons not listed above must receive Deputy Director authority. Where the duty does not apply, the decision must be made at SEO level or above.

It is expected that in any claims linked to either mental or physical health issues that medical evidence will be made available to substantiate that claim. It may be necessary to delay a decision to await medical evidence however, that delay should be of no more than 28 days. If no evidence is forthcoming the end of at that period a decision should be made, and EM applied if appropriate in the known circumstances. Any decision should be reviewed upon receipt of any further evidence within 14 days of receipt.

Vulnerability considerations

The table below sets out some considerations that may be required to establish whether there is a disproportionate breach of a person’s rights under Article 8 of ECHR either by the imposition of EM or the type of device to be imposed. This must not be used at a stand-alone guide, and its use must be in conjunction with the detailed guidance in Use of EM above. Neither the conditions nor the considerations listed are exhaustive.

EM and linked Supplementary Conditions: review

Condition/issue	Evidence required	Consideration required
EM condition would cause serious harm to the person’s mental or physical health	Medical evidence unless this is a long lasting condition that the Home Office already holds evidence of and which is unlikely to have improved	- expected impact – will there be physical suffering caused by wearing the device once the wearer is acclimatised to wearing the device - does mitigation/alternate remedy exist for example, can a fitted device be worn on different leg or (in extreme conditions) on the wrist - can a non-fitted device be employed - does the person have a medical condition or disability which means that they are unable to personally comply with their bail conditions, for example, limited mobility means they would need assistance to charge their device
People whose claim to have been tortured has been accepted by the Home Office or First-tier Tribunal	Medical evidence suggests that the use of EM would significantly impact on mental or physical health	- what was the nature of torture in the initial claim - could wearing a fitted device replicate the conditions of torture, for example, manacled to a wall - is there evidence that the application of EM irrespective of device type will have a detrimental impact on those diagnosed with PTSD - were there physical injuries as a result of torture which have not healed which would mean that a fitted device is unsuitable - can a non-fitted device be employed
People whose claim to be a victim of modern slavery has received a positive conclusive grounds decision	Medical evidence suggests that the use of EM would significantly impact on mental or physical health	- is there evidence that the application of EM will have a detrimental impact on those diagnosed with PTSD irrespective of device type - were there physical injuries as a result of torture which have not healed which would mean that a fitted device is unsuitable - can a non-fitted device be employed
The person’s mental capacity	Medical evidence or a formal assessment of mental capability including evidence of the impact on that person’s mental capacity	- does the person have the capacity to understand the requirements placed on them to maintain the device irrespective of the device type - is the person’s mental capacity diminishing - does the person suffer from confusion or will the device cause significant anxiety - does the medical advice give a definitive statement about the impact of EM on the person’s mental capacity irrespective of the device type - can a non-fitted device be employed
Pregnant women (18 weeks plus) and women who have recently given birth (within the last 3 months)	Evidence of pregnancy – MAT B1 form and/or birth certificate	- from 20 weeks pregnancy oedema may occur without notice causing a device to become dangerously tight limiting blood flow to the foot, cutting into the leg and causing distress. - after giving birth recovery is required and there will be a number of medical examinations to monitor the mother’s health. Some swelling may also take time to dissipate - can a non-fitted device be employed
Those suffering with phlebitis or similar conditions	Medical evidence	- as with pregnant women phlebitis can cause sudden onset oedema causing the device to be dangerously tight, limiting blood supply to the foot, cutting into the leg and causing distress - can a non-fitted device be employed
The elderly	Medical evidence	- is there evidence of frailty or age-related conditions which may impact on the person’s ability to wear and/or maintain the device irrespective of type - does the person have thinning skin which will damage and blister from wearing a fitted device - do they suffer with osteoporosis making it more likely that damage could be sustained to the leg by wearing a fitted device - do they suffer with arthritis in the legs/ankles that could be exacerbated by the wearing of a fitted device? - is there evidence of dementia or confusion which may impact the ability to comply with the related bail conditions irrespective of the device type? - actual age is not a bar but the older the person the more likely that they will have conditions which make EM inadvisable
Life limiting conditions	Medical evidence	- is the person mobile - what is their life expectancy - do we intend to enforce deportation - is the person receiving regular medical treatment - does the person require regular MRI scans
Serious medical conditions, for example, cancer	Medical evidence	- is the person receiving active frequent treatment - do they require regular MRI scans - are they mainly confined to bed/the home - do we intend to enforce deportation

Electronic monitoring: individuals subject to the duty

Decision makers must always impose an EM condition if the FNO is subject to the duty and to do so would not breach their Convention Rights, see Use of EM, or be impractical, see Practical reasons. The decision maker may also request additional supplementary conditions if the facts of the case warrant it, see Immigration bail supplementary conditions: curfews, inclusion or exclusion zones.

Any decision to not apply the duty must be authorised by at least an SEO where it is for a reason listed in Use of EM. A decision not to apply the duty for any other reason must receive at least Deputy Director authority. Such a decision must be supported by consideration of why either the use of EM would be a disproportionate breach of either the person’s Convention Rights or is not practical in that particular case.

Where it is proposed to apply the duty but by way of a non-fitted device from the outset this should be agreed at a minimum of HEO level.

Where the duty applies to a person being deported solely based on a failed application to remain on the basis of marriage to an EEA national the decision maker should consider whether such condition would be compatible with the individual’s Convention Rights. Should it be considered that EM should be used this must be agreed at Deputy Director level.

Irrespective of the decision the case record must clearly indicate that EM has been considered as a condition of bail.

When considering the conditions of release on immigration bail the First-tier Tribunal must impose an EM condition on a person subject to the duty unless the Secretary of State has stated that it should not be imposed. Where immigration bail is granted by the Tribunal, but the grant of bail is silent on the issue of EM (and the Secretary of State has not stated that it should not be imposed), the following is appropriate:

if management of bail has been transferred to the Secretary of State EM will be imposed on the basis outlined in the bail summary
if management of bail has not been transferred the case owner must refer back to the First-tier Tribunal and request a variation of bail with EM as a condition in line with the legislation as set out in Variation of bail by the Tribunal.

Where bail is sought through the First-tier Tribunal the Home Office will request that there be a maximum 72-hour delay to release in order for EM arrangements to be put in place and where applicable to facilitate fitting the device at the point of release. There is however an exception to this rule if those held in the Dungavel Immigration Removal Centre (IRC) have a bail hearing on a Thursday and, if released with EM arrangements in place, will be travelling to a Northern Ireland (NI) based address. In this instance the Presenting Officer will request for the release to happen on a Monday, for the reason there are no public transport options in NI on a Sunday (72 hours after the decision is made) which would make travelling to their destination very challenging.

Practical reasons

In accordance with Schedule 10, the Secretary of State may decide not to impose an EM condition if the Secretary of State considers that to do so would be impractical.

Paragraph 2(9) of Schedule 10 of the Immigration Act 2016 sets out matters that the Secretary of State may in particular have regard to, when considering whether it would be impractical to impose electronic monitoring (or continue to impose electronic monitoring) where a person is subject to the duty. These are:

any obstacles to making electronic monitoring arrangements in relation to the person
the resources that are available for imposing electronic monitoring conditions on persons to whom the EM duty applies and for managing the operation of the electronic monitoring
the need to give priority to the use of those resources in relation to particular categories of persons to whom the EM duty applies
the matters listed in paragraph 3(2) as they apply to the person (as set out in Exercising the power to grant immigration bail)

There will be fewer devices available than the number of individuals subject to the duty, and fewer fitted devices available than non-fitted devices. As a result, there will be a need to regulate the use of devices. Cases identified as being in most need of monitoring will be prioritised for EM conditions as follows:

foreign national offenders in the following order:
- those who are considered to pose very high harm to the public
- those who are considered to pose high harm to the public
- those who are considered to pose medium harm to the public
- those who are considered to pose low harm to the public
foreign nationals subject to deportation with assurances
foreign nationals who have entered in breach of a deportation order
EU nationals and/or their family members subject to deportation

Where the duty applies to a person already subject to immigration bail due regard shall be given to the length of time which has elapsed since release and the person’s compliance with immigration bail during that period. Those persons who are considered to pose less risk of harm, have been consistently compliant with bail conditions and have been subject to immigration bail for over 12 months are less likely to be prioritised whilst those persons who are considered to pose a high risk of harm, have failed to comply / consistently comply with their bail conditions may be considered a priority irrespective of the length of time they have already spent on immigration bail. It does not however, prohibit the use of EM in such cases where either resources are available or there are other reasons to believe that EM provides the most effective way in which to maintain contact.

Electronic monitoring: individuals not subject to the duty

It is not usual practice to seek an EM condition where a person is not subject to the duty. However, there may be occasions where the individual is considered to be of such risk of absconding and to pose such risk of harm that an EM condition would be necessary and proportionate.

As part of that consideration, the following must be taken into account to ensure that there are no practical bars to applying EM: where a Justice Department imposes EM conditions (where a person is subject to EM imposed by the Ministry of Justice or the Justice Departments of Scotland or Northern Ireland) and where the EM address is considered unsuitable.

In these cases, you must obtain authority from your Deputy Director to seek an EM condition. It is also possible for the First-tier Tribunal to impose an EM condition of its own initiative (that is, where this has not been requested by the Home Office). Where it is considered following a review of EM that it is no longer suitable to monitor the person you must obtain SEO authority.

Representations

Prior to a final decision to apply electronic monitoring as a condition of bail, with or without supplementary conditions, representations must be invited from the person. The below sets out the representations process, forms and timescales for different scenarios. A decision to vary bail from a fitted to non-fitted device does not require the invitation of representations.

Where a person is already subject to immigration bail:

if the person is being considered for a variation of bail to apply an electronic monitoring condition, they must be given 10 working days to provide representations irrespective of whether the duty applies
if the person is being considered for transfer from a RF to a GPS device they must be given 10 working days to provide representations
if the person has breached bail whilst on a non-fitted device and as part of that breach action is being considered for a variation of bail to a fitted device they must be given 10 working days to provide representations

Where a person is detained:

if authority has been given on behalf of the Secretary of State to grant immigration bail and it is considered that such bail should be subject to EM, the case worker must invite representations from the person concerning EM and any supplementary conditions - the person must be given 3 working days to provide representations

Where a person was previously subject to an EM condition of bail, but was then detained for a brief period, and is then to be released again on bail, it will not be necessary to seek representations in the following circumstances:

where the person has been detained for less than 2 weeks and, either:
- release is the result of legal proceedings being lodged
- release follows completion of a travel documentation exercise
removal by chartered or scheduled flight has been cancelled for a reason other than the individual’s non-compliance
the decision maker is not aware of any new information which may impact on the use of EM (see below)

Before release subject to an EM condition is authorised in the above circumstances, consideration must be given to any information revealed during the brief period of detention which may have an impact on the use of EM. This includes any information provided within representations which have led to release, or any information in regard to vulnerabilities, including information received from healthcare.

In all cases regard must be had to the matters set out in Exercising the power to grant immigration bail, and the guidance set out in Use of EM.

Representations should be invited using the following forms:

BAIL 211 where a provisional decision has been made to grant bail to a detained person and apply a particular GPS EM condition/supplementary condition or to vary a person’s bail to include a particular EM condition/supplementary conditions
BAIL 212 where in the rare event that for public safety reasons a Radio Frequency device is considered appropriate
BAIL 213 where the person is subject to the duty but is in immigration detention and a decision has not yet been made to grant them bail
BAIL 214 where the person is subject to the duty but is currently on immigration bail or in a position of liberty

Where no representations have been received following service of a BAIL 214, and the person is already in a position of liberty, they should be provided with a BAIL 211 prior to the application of EM if supplementary conditions are to be applied or where more than 3 months have passed since the deadline for submitting representations.

Considering representations

Any representations received within the response timeframe must be considered when making a final decision regarding the imposition of EM or a supplementary condition. Decisions should be made based on the information provided in addition to information already known about the person with the response provided on a Bail

In all cases regard must be had to the matters set out in Exercising the power to grant immigration bail, and the guidance set out in Use of EM.

Representations must be considered and responded to in a timely manner prioritising cases where the person is already subject to EM and there is an indication that there is an immediate physical danger to the person followed by those whose release is imminent. Where representations were received within the stated response timeframe and the person is already on immigration bail the decision should be notified to the individual within 28 days of receipt of the representations.

Where representations were received within the stated response timeframe and the person is detained, the decision maker should seek to make the decision at least 3 days (excluding weekends) prior to that release date and notify the individual of the outcome.

Decisions should be made on the information provided in addition to information already known about the person, and responses provided on a BAIL 215. In all cases regard must be had to the matters set out in Exercising the power to grant immigration bail, and the guidance set out in Use of EM. It should not normally be appropriate to seek any further information in order to make a decision, but where it is necessary, a decision should be notified to the individual within 14 days of either the information being received or the target date for responding (whichever comes first). If the person or their representative has indicated that medical information is to follow the representations a delay may occur to facilitate this, but a decision should not be delayed more than 28 days.

Where representations are received after the response date and the EM Supplier has already been tasked to fit the device that order will continue to be implemented and a decision will be made after the implementation. Where the EM Supplier has not already been tasked a decision will be made before tasking proceeds.

Where it is considered that the EM condition against which the representations were raised is disproportionate the immigration bail conditions must be varied and served on the person, additionally the EM supplier must be advised that the condition should be ceased with immediate effect.

In cases where representations have been made against a curfew condition, inclusion or exclusion zone the final decision whether to proceed with the proposed condition must be made at no lower than SEO level.

Levels of authority for use of EM

To ensure that appropriate decisions are made in relation to the use of EM certain key decisions will need the authority of a senior officer as set out below:

Decision being made	Does duty apply	Minimum authorising grade
To apply the duty	Yes	HEO
To apply the duty where deportation is solely following refusal of application based on marriage to
an EEA national	Yes	Deputy Director
Not to apply the EM duty upon release for a reason listed in Use of EM	Yes	SEO
Not to apply the EM duty upon release for a reason not listed in Use of EM	Yes	Deputy Director
Not to apply the duty where the person is already at liberty	Yes	SEO
To apply EM where duty does not apply	No	Deputy Director
To apply/disapply a supplementary condition where the duty applies	Yes	SEO
To apply/disapply a supplementary condition where the duty does not apply	No	Deputy Director
Decision to cease monitoring in all cases	Yes/No	SEO

The grades listed above are the minimum level of authority required. Dependent on the circumstances of the case, in particular the risk of harm posed by an individual, it may be appropriate to seek authority at a higher grade.

Where a Justice Department imposes EM conditions

Where a person is subject to EM conditions imposed as part of their management by the Ministry of Justice or the Justice Department of Scotland or Northern Ireland the following approach should be taken (whether or not the EM duty applies):

England and Wales – the Home Office uses the EM contract managed by the Ministry of Justice therefore it is possible for both the Home Office and another law enforcement agency such as HMPPS to have different EM conditions monitored through a single GPS device. Any breaches of EM conditions will be notified only to the agency which requested them. For example, the Home Office will only be notified of breaches of the conditions they requested and HMPPS would be notified only of the breaches of the conditions they requested. In these instances, the use of non- fitted devices will not be suitable whilst the other order is in place.

Scotland and Northern Ireland – both Scotland and Northern Ireland use EM as part of their approach to Justice management. Each country has a separate EM contract to deliver this service, and both rely on the use of Radio Frequency technology. The Home Office does not have access to the devices provided through these contracts and it is therefore not possible to monitor through a single device.

The imposition of 2 separate EM devices at the same time should be avoided. In order to ensure that there is effective management of a person’s rehabilitation and/or contact management whilst subject to criminal bail the following approaches should be taken:

the Home Office will, for practical reasons, not impose EM whilst an electronic monitoring order imposed by a Scottish or Northern Ireland department is in force - in cases where that that order is part of a licence or sentence the Home Office will be notified when that order is due to cease - if it is considered that there are no exemptions to applying the duty the Home Office will seek to implement the duty the working day after the Scottish or Northern Ireland order ceases
where the person is subject to EM by the Home Office and is either remanded by the Court on EM or convicted and sentenced to a Community Order including EM the Home Office will cease its EM and will consider re- implementation as soon as possible after the order imposed by the Court has expired

Where a person is subject to EM by another law enforcement agency and is to be subject to EM as a condition of their immigration bail, either in conjunction with the existing EM in England and Wales or where the existing EM is due to cease, representations must be sought. For more details see Electronic monitoring – Representations..

Electronic monitoring: implementation

See also: Immigration bail supplementary conditions: curfews, inclusion or exclusion zones.

The decision maker must inform the person of their responsibilities regarding EM (and, if applicable, their supplementary conditions) both before and after the EM induction has taken place in order to answer any questions or concerns that an individual may have about the process and inform how their data can be used.

These are as follows:

being present at the specified address during a fixed period in order for EM equipment to be installed
reading and fully understanding the handbook that is given to them – this explains their EM condition in detail and how their personal data will be used
reading and fully understanding the conditions which relate to their immigration bail including how to maintain the device
maintaining their EM device and any mobile phone issued to them as outlined in the handbook issued by the supplier to include charging the device daily until fully charged
not damaging/allowing another to damage the EM device or preventing/allowing another to prevent the EM device to function as intended
contacting the monitoring centre and the decision maker immediately if problems occur with their telephone line, tag or monitoring equipment
providing biometric data when alerted to do so by their non-fitted device
ensuring that they report at the times and days specified in their BAIL 201
in the event of an emergency which means that they have to enter an exclusion zone or leave an inclusion zone, they must notify the decision maker and the monitoring centre either during the emergency or as soon as possible thereafter
in the event of an emergency which means that they have to leave home and are unable to be monitored electronically during any curfew period, they must notify the decision maker and the monitoring centre either during the emergency or as soon as possible thereafter:
- decision makers must make individuals aware that they would need to prove the emergency in the form of documentary evidence, for example, medical certificate
trail data will be held by the EM supplier but may be accessed by the Home Office where one or more of the following applies and where proportionate and justified in the circumstances in accordance with data protection law:
- a breach of immigration bail conditions has occurred, or intelligence suggests a breach has occurred to consider what action should be taken in response to a breach up to and including prosecution
- where a breach of immigration bail conditions has occurred, which has resulted in the severing of contact via EM, trail data will be used to try to locate the person
- where it may be relevant to a claim by the individual under Article 8 ECHR
- to be shared with law enforcement agencies where they make a legitimate and specific request for access to that data
anonymised data may be used to understand the impact of EM and the behaviours of those on EM to continuously improve the service and to inform immigration policy, in accordance with data protection law

The EM Supplier will notify the EM Hub of the outcome of address suitability assessments and inductions. The EM Hub will then notify the decision maker and update Atlas.

If induction is successful, there is no further action required by the decision maker in relation to the commencement of EM services.

EM address considered unsuitable

When seeking accommodation for a person you must refer to the guidance on accommodation (see Immigration bail –interim guidance) in the first instance to ensure that the person is accommodated in the most suitable setting.

If the EM contractor reports that a proposed immigration bail address is deemed unsuitable for EM services, the EM Hub will notify the decision maker that an alternative address is needed to install EM equipment. The relevant sections of the BAIL 206 (see Electronic monitoring: additional requirements for further information) must be issued to end the live EM order with the EM supplier.

The decision maker must then consider how to proceed with the case, seeking assistance as necessary from their managers. Further consideration may be given to whether an EM condition remains necessary for a grant of bail and, if so, what alternative address could be sourced for the person. If a new address is sourced, a new tagging order must be made, and a fresh BAIL 206 completed. This scenario is more likely to occur where a HMU is required to be installed owing to the presence of a curfew, although in some cases a poor GPS signal may also make the property unsuitable.

Accommodation where a person has been referred into the National Referral Mechanism

EM is acceptable in safe house accommodation provided to those who are being supported by the Home Office Modern Slavery Victim Care Contract (implemented by The Salvation Army), where that is the appropriate accommodation in line with the MSVCC accommodation policy set through the Modern Slavery Statutory Guidance. In all cases regard must be had to the matters set out in Exercising the power to grant immigration bail, and the guidance set out in Use of EM.

No fixed abode

The lack of a permanent address is not an exemption under the duty. Consideration must be given to both the person’s personal circumstances and the practical implications of requiring regular charging. This includes whether the person has access to accommodation but not a regular address, whether the person is street homeless and whether the person has access to an electrical supply on a daily basis (or at least every other day).

Where it is considered appropriate to apply the duty the default address to be used is the ROM to which the person will be reporting. Checks will be made at the first reporting event and at the point of any EM reviews to establish whether the person now has a stable address and if so ensure that personal records are updated.

Failed EM inductions

The Home Office will seek to have an EM device fitted at the point of release wherever this is practical. Where this is not practical the device will be fitted at the person’s home address.

The EM supplier will attend the specified address to apply the EM device to the bailed person. If the supplier is unable to complete this induction, the supplier will notify the EM Hub of the failure. Where the person is being released from detention the implementation of EM will be a condition of release onto bail and as a result consideration must be given to whether release can continue. The decision maker will need to consider the reason for failure, for example, was it because of non- compliance on the part of the individual, failure of the equipment etc, consideration must also be given to how long it may take to resolve an issue such as equipment failure. The decision maker will then choose one of the following options:

serve detention paperwork for those due for release from custodial sentence
maintain detention for those being released from immigration detention (it may be necessary to provide new detention papers to the place of detention
allow release to continue on the understanding that the device will be fitted at the home address at a specified date and time

The EM supplier will automatically arrange a second attempt to fit the device. The decision maker must request that the EM Hub notifies the EM supplier if the location for fitting has been amended. If the second attempt to induct the bailed person is successful, no further action is required by the decision maker in this regard.

However, if the second attempt fails, the EM supplier will make no further attempt to install the EM equipment or apply the EM device to the bailed person. The supplier will notify the EM Hub of the failure. The EM Hub will notify the decision maker and request BAIL 206 is completed to end the tagging order with the EM supplier.

The decision maker must investigate the reasons for failure to induct before requesting further induction visits. If these enquiries indicate the bailed person has absconded, attempts to implement EM must cease and the absconder process must be followed.

If these enquiries indicate the bailed person is unable to access the property for some reason, the decision maker must consider asking the bailed person to provide an alternative address before re-instigating the EM service.

If the enquiries confirm the bailed person is residing at the address, a new BAIL 206 must be completed and resubmitted to the EM Hub for their action.

If a second round of attempts to induct the bailed person fail, more detailed enquiries must be made. It may be necessary, following any enquiries being made, to consider alternatives to EM at this stage including but not limited to the application of sanctions for non-compliance with Immigration Bail. For further information see Non-compliance with immigration bail: administrative penalties.

Where a HMU is also required and the bailed person fails to comply with a request to allow entry to the EM Supplier, the EM Supplier will notify the EM Hub of the failure to install the HMU and will re-schedule one further visit. Failure to comply with the installation of an HMU will be considered as a breach of bail conditions and consideration will be given whether to take further action against the person.

Electronic monitoring: additional requirements

If the First-tier Tribunal or Secretary of State grants bail with EM conditions, the caseworker must task the EM Hub on Atlas with producing the release paperwork and arranging EM induction at source. The caseworker must also ensure a recent Police National Computer (PNC) check has been conducted on the person to be tagged – a PNC check is required because of the Home Office duty of care to the contractor – the contractor will use this information when risk assessing the proposed induction, instructions for PNC checks are dependent on existing local arrangements.

The EM Hub produces the Notification to Contractor of New (or Variation to Existing) Electronic Monitoring Condition form (BAIL 206) and forwards it to by email to EMS.

As part of this process the EM Hub must:

ensure that a photograph of the person is attached to the BAIL 206 in order that the EM Contractor can identify the correct person to induct and tag
ensure that there is a harm assessment which highlights any violent behaviour
identify the person’s gender to ensure that where the person is / identifies as female, a female member of the supplier’s staff is present at the induction
provide the EM Hub’s contact details on the BAIL 206:

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The decision maker is responsible for ensuring decisions have the appropriate authorisation and Atlas is updated correctly.

The EM Hub will check the appropriate authority has been given for the use of EM and any supplementary conditions and will complete the BAIL 206. Any paperwork without an appropriate authorisation, or which is incomplete, will be returned to the case owner for remedial action. The EM Hub mailbox is constantly monitored in working hours and any paperwork which requires amendment will be returned to the caseworker within 24 hours.

Once the EM Hub is satisfied that the paperwork is correct, it will refer the case to the EM Contractor to arrange induction of the bailed person.

EM and linked supplementary conditions: review

See also: Varying immigration bail conditions.

The use of EM and any linked supplementary conditions of curfews, inclusion zones or exclusion zones require regular monitoring to ensure that they remain proportionate.

Where the duty applies and there are no practicality issues, the duty to monitor the person applies unless a proportionality argument outweighs the legislative requirement to use EM.

Whilst the review of EM will typically be undertaken by the EM Hub where the responsible decision-making unit is FNO RC it is essential that all decision makers ensure that there is regular review of EM. Directorates other than FNO RC must review their own EM cases unless an agreement has been made with the EM Hub to review cases on their behalf.

The use of EM and all supplementary conditions to EM must be reviewed by a decision maker in any case allocated to them:

every 4 months
when they receive any representations on the matter, including requests to vary the condition, from the individual or a person acting on their behalf
when a request is made by another decision maker

The purpose of the review is to ensure that the individual remains suitable for both EM and any supplementary condition or conditions and any EM or conditions continue to be necessary and proportionate in consideration of the facts at the date the review is undertaken. The review will also provide an opportunity to consider whether the device type remains the most appropriate. In all cases regard must be had to the matters set out in Exercising the power to grant immigration bail, and the guidance set out in Use of EM. It will be necessary to consider movement between devices in both directions such as from fitted to non-fitted as well as non-fitted to fitted.

Factors to be taken into consideration will include, but are not limited to:

the overall time spent on EM
the time on the particular device type
the risk of absconding
the risk of harm posed to the public
the risk of re-offending
the expected time until removal
any vulnerabilities
compliance with immigration bail

Compliance with immigration bail

A person’s compliance with both their immigration bail conditions, immigration control and the criminal justice system will provide an indication of the person’s likelihood to remain in contact with the Home Office whilst their immigration matters are bought to conclusion. The less compliant a person, irrespective of the factors considered above, the more likely that they would remain on EM for a longer period. Where compliance has been low or intermittent whilst on a non-fitted device this should prompt consideration of the use of a fitted device. Particular consideration should be given to any periods where the person has sought to avoid contact by failing to charge their EM device or has in some way tampered with the device or its ability to operate properly. Where a person has damaged or broken two non-fitted devices or more, this should result in consideration of the use of a fitted device unless doing so would be unsuitable or impractical. Additionally, regard should be had to whether the person has attempted to abscond or evade immigration control or if there has there been a significant change in either personal circumstances or in the progress of their case that indicates that they may now pose a higher or lower risk of absconding. Examples may include where appeal rights have been exhausted or there have been multiple representations which have been rejected or removal is no longer imminent.

When considering whether it is appropriate to cease monitoring or change their device type and the person was placed on EM following a period of liberty (not including those released and tagged at home as part of their release conditions) consideration should be given to their general compliance with their bail conditions and case management prior to release. Where the person was fully compliant before EM and has continued to remain compliant this should be considered when making a decision.

The imminency of removal should be considered in tandem with compliance with immigration bail.

The risk of re-offending

It is appropriate to consider whether the person has re-offended whilst being subject to EM and any information that suggests that they still pose a risk of re-offending.

Consideration should be given to whether the person is subject to MAPPA or JIGSAW arrangements. If such arrangements are in place the relevant panel should be asked for their views on the potential cessation of EM or transfer from a fitted to a non-fitted device. It should be stressed that whilst the panels views are being sought their response will be considered along with other factors and the final decision may not be in line with their recommendation.

Vulnerabilities

Evidence of vulnerability should always be considered, particularly as they can change over time. This includes any new vulnerabilities that have been brought to notice since the previous review and any evidence that there has been a worsening of any known medical conditions. A vulnerability doesn’t necessarily mean that it is not possible to apply an EM condition as it may be appropriate to use a non-fitted device rather than a fitted device. See Vulnerability considerations.

For further information see Use of EM.

The general expectation is that a person who poses a greater risk of harm and has been less compliant with immigration bail will remain on EM longer than a compliant person who poses a lower risk of harm. These considerations will also impact on how appropriate it is to use a non-fitted device where the person poses a high risk of harm or has been non-compliant with their bail conditions. A person’s failure to comply with the conditions attached to a fitted device may be considered an indication of the likelihood of non-compliance with conditions attached to a non-fitted device. The risk of harm posed by that person will influence the degree of tolerance that will be had to such potential non-compliance. This expectation is subject to practicality considerations as the available resources are applied to those who pose a greater risk to the public and/or of absconding over an extended period. Should there be no issue in regarding the availability of resource (that is, available devices and the necessary resource to monitor them) decisions will be made on Convention Rights grounds or on the basis that it is impractical to do so given the person’s individual circumstances (as detailed further in paragraph 2 (9) of Part 1 of Schedule 10 to the Immigration Act 2016).

Any decision maker who wishes to propose a variation to EM, the EM device or a supplementary condition must seek at least HEO agreement for this variation.

The outcome of the review of EM and of any supplementary condition or conditions, including the consideration undertaken by the decision maker and any escalation to HEO or higher, should be recorded in a comprehensive file minute and on Atlas.

Where immigration bail is managed by the First-tier Tribunal the Secretary of State may request that the EM condition is ceased if practicality issues now apply or Convention rights are disproportionately breached. Schedule 10 requires that the First-tier Tribunal acts in accordance with the Secretary of State’s decision where the duty applies. Where the monitored person, subject to the duty, applies direct to the Tribunal for a variation of bail to cease their EM condition, the Secretary of State must agree that the duty no longer applies before it is ceased. It will not be necessary to seek the First-tier Tribunal’s approval to move the person between device types.

Decision makers are reminded of the need to employ professional curiosity when making any decision. Where there are concerns regarding the decision to be made advice should be sought from a Senior Caseworker in the first instance in line with the ethical decision model.

Whilst EM Reviews provide the opportunity to consider whether the use of EM is or remains appropriate, they do not provide a linear progression in all cases. It is possible that EM may not be appropriate for a period of time even where the EM duty would otherwise apply but a change of circumstances may make it appropriate at a later date. It may be possible to move a person between device types where there are changes in a person’s vulnerability or their compliance with their bail conditions.

Decisions to remove a person from EM, where the duty applies, will be based either on the basis that there is a breach of a person’s Convention Rights or on practicality grounds.

Decision makers must consider:

the need for continued monitoring
whether the device type continues to be appropriate
the continued necessity of the supplementary condition or conditions – whether each supplementary condition is still necessary or if the circumstances changed sufficiently that each supplementary condition no longer serves its intended purpose
the proportionality of the supplementary condition – whether the current restrictions imposed by that condition are still appropriate as follows:
- curfews - both in terms of timing and length, whether there is a basis on which to alter the curfew, for example if family circumstances have changed significantly or they have been transferred from a radio frequency device to a GPS device
- inclusion or exclusion zones – in terms of the location, size and number of zones, for example does the reason for setting the zone still apply
any challenge to the supplementary conditions or conditions – whether there has been a challenge to the supplementary condition or conditions from the individual or legal representatives, whether an argument has been made and how strong this is

Where there is a proposal to add or vary any existing conditions the decision maker must give the person an opportunity to make representations about a supplementary condition before the supplementary condition is put in place as set out in Representations.

Where the duty applies, and the decision maker wishes to propose that EM is ceased they must seek at least SEO authorisation.

Where a review is prompted by a breach of EM conditions the individual must be invited to submit an explanation for that breach by service of a BAIL 204 and should be allowed 10 days to submit their response. Consideration of the response to breach should not take place until after those 10 days have expired unless the breach has effectively severed contact between the individual and the Home Office such as they have removed the device or otherwise stopped it from communicating with the monitoring system. In those circumstances, consideration of the response to the breach may continue without delay.

Use of automated business rules

Where the EM duty applies, the decision maker may have access to a decision support tool which utilises automated business rules to provide decision recommendations for the decision maker to consider alongside the guidance set out in Use of EM and EM and linked supplementary conditions: Review. The decision support tool may make recommendations in the following areas:

whether a non-detained person is suitable for electronic monitoring
whether it is appropriate to consider moving an electronically monitored person between a fitted device, a non-fitted device and no device

Key structured data that the tool utilises to generate its decision recommendations include:

a person’s age – are they 18 or over
are they identified as a mentally disordered offender as defined in Immigration bail conditions: electronic monitoring (EM) duty
the overall time spent on EM (where that EM was imposed by the Home Office)
compliance with immigration bail
the risk of harm posed to the public

Immigration legislation requires that decisions are made by a person. A decision support tool can make a recommendation which may be used by the decision maker as a starting point. However, consideration must be separately given to any known vulnerabilities, likelihood of failing to comply with bail, likelihood of re-offending and any additional factors known to the Home Office which may have an impact on the decision. The decision maker must them make a final recommendation for approval as set out in EM and linked Supplementary Conditions: review

Whilst the decision support tool may be used to support decision making a decision may be made without using this tool and relying on the guidance set out in EM and linked Supplementary Conditions: review.

Risk of harm types: offences

The data that automated business rules uses when considering risk of harm is based on criminal offences set out in the table below. If a manual review is completed the same risk of harm should be applied when considering whether the use of EM remains proportionate.

Low harm types	Medium harm types	High harm types	Very high harm types
Motoring offences other	Perjury	Obstruction of an immigration officer	Kidnapping and attempted
Section 35 non- compliance	Possession of false instrument with intent	Money laundering (drugs criminal and immigration)	Arson
Custom and excise cases (all other except drugs)	Drugs	Drugs – with intent to supply	Non-terrorist explosive offences (including handling, supplying, using making)
Illegal entry	Deception (pecuniary advantage, property, services)	Drugs – being knowingly involved in the supply / production of drugs	False imprisonment
Copying a false instrument	False reps to obtain support	Offenses against the person assault)	Attempted rape (adult or minor)
Bigamy	Making false statements / representations	Racially motivation crime (except attempted murder / violence)	Rape on a minor
Avoiding enforcement action by deception	False statement of application (81 BNA)	Drugs – importation of controlled drugs	Sex offences against children not listed elsewhere
Breach of conditions	Assisting an offence	Robbery (including street)	Attempted murder
A2 breach of employment restrictions	False statement to get marriage licence	SRP (Somali Region Programme)	Trafficking (people / drugs)
Consideration of deportation: overstayer	False statement to register marriage	Fraud / embezzlement	Behaviour (including bomb hoaxes / threats to kill)
S2 failure to produce a document at interview	Theft	Drugs – production	Possession and / or use of offensive weapon (firearm offences)
Handling stolen goods	Seeking / obtaining leave by deception	Incitement (rob, riot, racial hatred)	Firearms (other than possession / use offensive weapon)
Court offences (bail offences, perjury, contempt)	Employing a person not entitled to work	Breaches of the peace (affray, rioting)	Military offences (Armed forces only)
Overstaying	Facilitating gaining leave by deception	Criminal damage	Genocide / war crimes
-	Revenue and customs case (other than drugs)	Death by dangerous driving	Murder
-	Obtaining property by deception	Burglary (aggravated/breaking and entering)	Armed robbery
-	Offences under the Marriage Acts	Conspiracy (defraud, murder, kidnap)	Crimes against a minor (all other not listed)
-	Facilitating asylum entry for gain	-	Entry in breach of a DO
-	Obtaining pecuniary advantage by deception	-	Offences under Sex Offenders Act
-	Obtaining a British passport by deception	-	Possession / use of offensive weapon
-	Attempting / perverting the course of justice (including threatening jurors / witnesses, tampering with evidence)	-	Rape
-	Conspiracy to defraud	-	Sex offences not listed elsewhere
-	Forgery	-	Possession and / or use of weapon (non- firearms)
-	Facilitating illegal entry	-	Manslaughter
-	Possession and / or use of false instrument	-	Indecent assault
-	Harbouring	-	-
-	Motoring offences serious	-	-
-	Dishonest reps to obtain support	-	-
-	Alteration / possession of a false document	-	-
-	Obtaining services by deception	-	-

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Length of time on device type

It is expected that a person who will be subject to EM will spend a minimum period on both a fitted and non-fitted device, unless it is indicated during a review at an earlier point that there is a Convention reason why EM is no longer suitable. This minimum period is determined by the tier the person falls into based on their offending history, which is proportionate to the risk of harm posed by the person. The harm score relates to the offence committed which may not automatically be reflected by the sentence imposed. However, this is an expectation only and these are purely indicative thresholds; the time spent on both or either device type may vary from that indicated in the table below, as it will be based on circumstances, including compliance with bail conditions, as well as the availability of devices:

Tier	Harm score (harm score relates to the score used within the decision support tool)	Sentence	Months on devices
1	Greater than or equal to 600	15 years	24 months on fitted device and indefinitely on non- fitted device
2	Greater than or equal to 400	6 years	12 months on fitted device and 30 months on non-fitted device
3	Greater than or equal to 250	4 years	8 months on fitted device and 24 months on non- fitted device
4	Greater than or equal to 150	3 years	8 months on fitted device and 16 months on non- fitted device
5	Less than 150	Less than 3 years	4 months on fitted device and 16 months on non- fitted device

Where the monitored person has no criminal convictions, the decision will be based on the remaining factors and will be considered to fall into tier 5.

Use of data

The GPS device collects trail data that is a record of where a person was over a period which can be displayed either in a list showing the date, time and location points at which data was collected or as a trail of timestamped dots on a map.

The data collected is processed by the EM Supplier on behalf of the Home Office and is not immediately accessible by the Home Office. The EM Supplier will notify the Home Office of any breaches of EM related immigration bail conditions, for example failure to charge a device or failing to respond to a biometric request. In addition, where appropriate, data can be requested from the EM Supplier. Use of the data collected is subject to the UK General Data Protection Regulation (GDPR) and a Data Protection Impact Assessment (DPIA). The DPIA specifies the instances when data may be accessed which are as follows.

Breach of immigration bail conditions

In the event of a notification of a qualified breach of immigration bail conditions from the supplier, authorised Home Office Staff may perform a full review of the bail conditions and ask the individual wearer for any mitigation for the breach. The review consideration may be informed by the mitigation supplied and the review of the full trail monitoring data records where proportionate and justified.

If, during the review of the trail data, it becomes apparent that further breaches of immigration bail conditions may have been/ are being committed (for example, trail data provides a strong indication that the person is working in breach – showing them at a specific location other than home between 8:00am – 5:00pm hours) then that data may be shared within the Home Office, for example, Immigration Intelligence where it is proportionate and justified to investigate for further possible immigration breaches under Part 2 of the DPA 2018.

If, during the review of the trail data by the Home Office, there is any other indication that criminal activity is or has taken place, then that data may be processed and shared with Law Enforcement agencies under Part 3 of the DPA 2018.

Person absconds

If the individual wearer loses contact and effectively ‘absconds’. Authorised Home Office staff may access the full trail data in order to try and ascertain the potential current whereabouts of the individual in order to arrange possible arrest and detention under immigration powers. Data processed under Part 2 of GDPR.

External Agency Request (EAR requests)

Where a legitimate and specific request is made for access to specific data by a Law Enforcement Agency. We may process and share under Part 3 of DPA 2018.

Article 8 representations / further submissions

In the event of the receipt of Article 8 representations or further submissions from the individual, authorised Home Office staff dealing with those submissions may request access to the full trail data to support or rebut the claims. This should negate the need to request ‘substantiating’ evidence from third parties which can cause unnecessary delays in considering the claims for example, where the person’s location at a certain time is material to the claim.

Allegations of EM breaches or intelligence of immigration bail condition breaches received

In the event of Home Office staff receiving either of the above, Home Office staff may request details of full trail data to cover a specific period relating directly to the allegations or intelligence.

Subject Access Requests (SAR) or legal challenge

In the event of either of above being implemented Home Office staff will comply with legal process and timelines for provision of data. Rights will be assessed on a case- by-case basis and delivered in conjunction with supplier or other government/public bodies as required.

Immigration bail conditions: other

Under paragraph 2(1)(f) of Schedule 10, a person may be subject to ‘such other conditions as the person granting the immigration bail thinks fit’.

Any such condition must be reasonable, and it must be necessary to meet the purpose of the grant of the immigration bail. For example, decision makers may require a person granted immigration bail to notify the Home Office of a change of circumstances, a change of address or require them to surrender their passport if

there is reason to believe that the person might deface or destroy the document to obstruct return to the country of origin or country from which the person arrived.

Where the person is also subject to a release licence it will not be appropriate to repeat conditions within their immigration bail conditions where to do so presents conflict in managing any breach of those conditions. It may be appropriate to require compliance with a release licence (whilst valid) in more general terms just as an offender manager may require general compliance with immigration bail.

Curfews may be used to mitigate risk to the public if the person being granted bail poses such a risk (and such risk is not being managed by an offender manager). The length of the curfew and time of day to which it applies must be determined on the facts of the individual case and must be proportionate.

Inclusion or Exclusion zones may be used to mitigate risk to the public if the person being granted bail poses such a risk (and such risk is not being managed by an offender manager). The extent of the inclusion/exclusion zone must be determined on the facts of the individual case and must be proportionate.

Immigration bail supplementary conditions: curfews, inclusion or exclusion zones

Decision makers must always consider the use of EM when granting immigration bail to a person who is subject to the duty. Additionally, decision makers may request EM where the person presents a high risk of absconding from immigration bail or they pose a significant risk of harm to the public or to public health. Decision makers may also request additional supplementary conditions if the facts of the case warrant it. For practical reasons supplementary conditions should only be applied to a fitted device.

Supplementary conditions should only be applied in extreme cases and any reliance on the scoring of risk of harm or re-offending must be taken from the assessment made by an Offender Manager - it should not be one made by a Home Office case owner.

Where a person is subject to the duty the authority of an HEO must be obtained to request EM and any supplementary condition must be authorised by an SEO.

The authority of a Deputy Director must be obtained before requesting EM and/or a supplementary condition where the person is not subject to the duty.

GPS EM can operate effectively without the use of a curfew or an inclusion/exclusion zone. The use of these conditions is rightly subject to scrutiny by the Courts and are considered to be akin to detention. As a result, they should only be considered where there is a clear demonstrable link to the effective management of immigration bail. They should not be used where a similar condition is set by an offender manager or to extend expired licence conditions. Prevention of further offending is unlikely to be a significant reason on its own.

In every request, decision makers must clearly identify and fully describe the risk of harm and/or risk of re-offending or absconding posed by the FNO. The decision maker’s consideration process must demonstrate why a supplementary condition is necessary in the particular circumstances of the case. If the decision maker is requesting one or more supplementary conditions, the justification for each must be set out separately and include:

the intended aim of the named supplementary condition or conditions
the risks of not applying the named supplementary condition or conditions
what the named supplementary condition or conditions can achieve that cannot be realised by other immigration bail conditions

In cases identified as suitable for a curfew, inclusion or exclusion zone conditions, the decision maker must, in the bail summary (BAIL 505) or referral for Secretary of State bail (BAIL 407) do the following:

request an EM immigration bail condition and additionally for curfews state clearly the curfew period or periods sought setting out the reasons for requesting the curfew, and the requested length and timing (its aim and the risks if curfew is not imposed)
for inclusion or exclusion zones, state clearly the reason for requesting it, the inclusion or exclusion zone required using available mapping tools supported by a description of the affected zones (its aim and risks if not imposed) - it must also clearly state the periods that the zone will be in operation for, including where that is 24 hours every day

For example, if a decision maker requests a curfew and the aim of the curfew is to reduce the risk of re-offending, there must be a logical connection between the length and timing of the requested curfew period or periods and the previous offending pattern. Another example could be demonstrating how the particular location and size of an inclusion or exclusion zones would reduce the risk of harm.

In all cases the decision maker must be able to justify the use of the supplementary condition in relation to the risk of harm, reoffending and/or absconding and/or the previous offending pattern.

It will then be the decision of the First-tier Tribunal or Strategic Director, as appropriate, to determine if the requested supplementary condition or conditions are proportionate and justifiable. If it is concluded that the requested supplementary conditions are not proportionate or justifiable in the circumstances of the case, the request will be refused.

Where the decision is made by the Strategic Director the decision maker must give the person to be granted bail an opportunity to make representations about a supplementary condition before the supplementary condition is put in place as set out in Representations above. Where the decision maker is the first-tier Tribunal the person or their representative may make their representations during the bail hearing.

Linked supplementary conditions: review

See also: Varying immigration bail conditions.

Where supplementary conditions linked to EM have been used, such as curfews, inclusion zones or exclusion zones, regular monitoring is required to ensure that they remain necessary and proportionate. See EM and linked Supplementary Conditions: review.

Where there is a proposal to add / extend any existing conditions the decision maker must give the person to be granted bail an opportunity to make representations about a supplementary condition before the supplementary condition is put in place as set out in Representations.

Immigration bail conditions: financial condition

As mentioned under Immigration bail conditions: general, a financial condition may be attached to all grants of immigration bail. A financial condition is a condition that requires the person granted bail, or another named person (Financial Condition Supporter), to pay a sum of money (payment liability) if the person granted bail fails to comply with one or more of the other condition or conditions attached to the grant of immigration bail. A financial condition cannot be imposed in isolation. It may be imposed only if it is thought to be an appropriate means of ensuring that the bailed person complies with at least one of the other conditions of immigration bail. For example, a financial condition of £500 for failing to comply with a reporting condition plus a sum of £500 for failing to comply with a condition relating to work.

You must obtain higher executive officer (HEO) authorisation if setting or varying a financial condition. Currently only the Foreign National Offender Returns Command (FNO RC) and the relevant unit will be imposing financial conditions. However, if the First-tier Tribunal has set this condition and transferred management of the bail to the Secretary of State, any team can continue to manage this condition.

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You must specify the following when imposing a financial condition:

the sum of money required to be paid (payment liability)
when the sum of money is to be paid
the form and manner in which it is to be paid

The use of a financial condition to secure compliance with other conditions of immigration bail is flexible. It may be a single sum imposed against one or more

individual conditions so that the specified sum of money becomes payable if that particular condition is breached, or it may be different sums imposed against different conditions.

Financial condition: fixing the sum to be paid

You must view the sum of money to be paid as part of a financial condition in relation to the means of the person to be bailed or the Financial Condition Supporter. You must set payment liability at a level that will act as a substantial incentive to the person to comply with the relevant other condition or conditions of immigration bail.

You must assess each case on its own merits.

You should not normally apply a financial condition in a sum less than £500 to a bail condition. This is because, if this went to debt recovery, the recovery itself would cost more money than the actual debt. A Financial Condition Supporter (see below) is however required to support all the conditions which have been set when bail is granted by an Immigration Judge, and in case of Secretary of State bail this will apply only to the conditions set on the specific Bail 301 SoS form.

Financial condition: fixing the sum to be paid

You must view the sum of money to be paid as part of a financial condition in relation to the means of the person to be bailed or the Financial Condition Supporter. You must set payment liability at a level that will act as a substantial incentive to the person to comply with the relevant other condition or conditions of immigration bail.

You must assess each case on its own merits.

You should not normally apply a financial condition in a sum less than £500 to a bail condition. This is because, if this went to debt recovery, the recovery itself would cost more money than the actual debt. A Financial Condition Supporter (see below) is however required to support all the conditions which have been set when bail is granted by an Immigration Judge, and in case of Secretary of State bail this will apply only to the conditions set on the specific Bail 301 SoS form

Financial Condition Supporter (FCS)

During a person’s induction into immigration detention, an official acting on behalf of the Secretary of State will provide a pack which includes the relevant bail notices and a factsheet about how the FCS process works, in the event of being granted bail. For further information see Informing detainees of their immigration bail rights.

A Financial Condition Supporter must satisfy all of the following:

be aged over 18 and settled in the UK with indefinite leave to remain (a person on immigration bail or with limited leave will not be acceptable as that person’s own stay may be limited/curtailed)
have a personal connection with the person, or be acting on behalf of a reputable organisation which has an interest in the person’s welfare
have enough money or disposable assets (clear of existing liabilities) to be able to pay the sum due if the person breaches a relevant immigration bail condition
be a homeowner or at least well-established in the place of residence
be free of any unspent criminal convictions (see Rehabilitation of Offenders Act guidance) – but see the note following these bullet points on unspent convictions
not to have come to adverse notice in connection with other immigration matters, including, in particular, previous immigration bail cases

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Unspent convictions: a Financial Condition Supporter with an unspent conviction may still be suitable – the gravity with which a particular offence is viewed, and the consequences for the suitability of the Financial Condition Supporter, will be a matter for the discretion of the Secretary of State or Immigration Judge.

Investigating Financial Condition Supporters

The financial and general standing of all prospective Financial Condition Supporters should be investigated as fully as possible. The decision maker must give them a BAIL 306 notice setting out what is required when standing as a Financial Condition Supporter. As such, they will be asked to produce evidence of their identity and financial position. Care should be taken over accepting bank books, statements of account and other similar evidence at face value, as it may be that sums of money have been deposited temporarily to create a false picture of the holder’s means. A record of deposits over a period (minimum of 3 months) is a useful indication of financial status.

All the usual immigration checks must be undertaken.

Immigration Intelligence may be consulted in appropriate cases (for example, where it is suspected that a Financial Condition Supporter may previously have been involved in facilitation or racketeering activities).

Where the Secretary of State is granting immigration bail, a Financial Condition Supporter will need to sign a BAIL 301 notice setting out the other condition or conditions of immigration bail to which the financial condition is attached. See: Immigration bail Consideration of bail process: detained: FNOs, with financial condition.

Where the Tribunal is granting immigration bail, the Home Office decision maker must record information on the Financial Condition Supporter checks done and their outcome on the bail summary BAIL 505, including where no opportunity to conduct checks has been given.

Financial condition: recovery

A payment liability under a financial condition is to be paid to the Secretary of State if either of the following applies, the:

Secretary of State granted the immigration bail
First-tier Tribunal granted the immigration bail but has directed that the power to vary the person’s bail conditions is to be exercisable by the Secretary of State

In all other cases, the payment liability is to be paid to the Tribunal.

The person liable for payment must be given the opportunity to make representations regarding the alleged breach.

For further information on financial recovery, see Recovery of payment under financial condition.

Question 7

Exercising the power to grant immigration bail

Accepted Answer

This page tells you about using the power to grant immigration bail. It also tells you about limitations on using the power.

In considering whether to grant immigration bail to a person, and which conditions to attach to the immigration bail if granted, the Secretary of State or the First-tier Tribunal must have regard to the following:

the likelihood of the person failing to comply with a bail condition
whether the person has been convicted of an offence (whether inside or outside the UK)
the likelihood of the person committing an offence while on immigration bail
the likelihood of the person’s presence in the UK while on immigration bail causing a danger to public health or being a threat to the maintenance of public order
whether the person’s detention is necessary in that person’s interest or for the protection of any other person (for example, if a person is awaiting transfer to a mental health hospital)
whether the person has failed without reasonable excuse to cooperate with any process:
- for determining whether the person requires or should be granted leave to enter or remain in the United Kingdom
- for determining the period for which the person should be granted such leave and any conditions to which it should be subject
- for determining whether the person’s leave to enter or remain the United Kingdom should be varied, curtailed, suspended or cancelled
- for determining whether the person should be removed from the United Kingdom
- for removing the person from the United Kingdom
such other matters as the Secretary of State or the First-tier Tribunal consider relevant (for example, the Adults at Risk in immigration detention policy)

Statutory limitations on First-tier Tribunal power to grant immigration bail

The power of the First-tier Tribunal to grant immigration bail is subject to the following statutory limitations:

Detention under paragraph 16(1) of Schedule 2

Under paragraph 3(3) of Schedule 10 to the Immigration Act 2016, the First-tier Tribunal must not grant bail to a person detained under paragraph 16(1) of Schedule 2 to the Immigration Act 1971 until the end of a period of 8 days since the person arrived in the UK. This means that the earliest point at which the First-tier Tribunal

can grant immigration bail to a person detained under paragraph 16(1) of Schedule 2 to the Immigration Act 2016 is on day 9 of the person’s presence in the UK.

This limitation only applies to people detained under paragraph 16(1) of Schedule 2. It does not extend to those detained under paragraph 16(1A) of the Schedule.

See also: Consent to bail: Secretary of State.

Under paragraph 3(4) of Schedule 10, the First-tier Tribunal must not grant bail to a person who is detained without the consent of the Secretary of State if both of the following apply:

directions for the persons removal from the UK are in force (and are not withdrawn)
the directions require the person to be removed from the UK within 21 days, starting with the date of the decision on whether the person should be granted immigration bail

This means that, if the Presenting Officer provides evidence that removal directions are set for 21 days or fewer away at a bail hearing, the First-tier Tribunal cannot grant immigration bail if the Secretary of State does not consent.

Under paragraphs 8-10A or 12-14 of Schedule 2 to the Immigration Act 1971 directions for removal are given to the carrier by which the person is to be removed. This includes removal by way of charter flights. Removal can only take place if directions are properly given in accordance with these paragraphs.

For these purposes, evidence of directions for removal being in force can be demonstrated when any of the following has been served on the person and/or the carrier that is required to conduct the removal:

Notice of Departure Details
IS 83 (directions to remove individual issued to the carrier in port cases)
IS 152B (directions to remove individual issued to the carrier in non-port cases)
flight manifest (directions given to the carrier for a charter flight) See Enforced removals: notice periods.

Repeat applications for immigration bail

Paragraph 12(2) of Schedule 10 requires Tribunal Procedure Rules to secure that if the First-tier Tribunal has decided not to grant a person immigration bail, the Tribunal must dismiss any further application for the person to be granted immigration bail without a hearing if both of the following apply:

the application is made within 28 days of the earlier decision
the person does not, on the papers, demonstrate to the Tribunal that there has been a material change in the person’s circumstances

Question 8

Informing detained persons of their immigration bail rights

Accepted Answer

With immediate effect and until further notice, the use of Informing detained persons of their immigration bail rights as set out in this instruction is suspended and the separate Immigration bail interim guidance must be used instead.

This page tells you about making detained persons aware of their bail rights, including the documents that must be given to them and when they must be given.

Information on immigration bail rights is contained in the reasons for detention form (IS91R or equivalent) issued to every person on detention.

The information in the form must be explained to the person, using an interpreter if necessary. Information on immigration bail rights is also included in the monthly progress update to detained persons (IS151F or equivalent).

Detained persons must also be given BAIL 403 during their induction to detention. This contains information on:

when they can apply for immigration bail
how to make immigration bail applications to the Secretary of State (using form BAIL 401)
how to make immigration bail applications to the First-tier Tribunal (using form B1)
how to apply for immigration bail accommodation (using form BAIL 409)
when they will be automatically referred for consideration for immigration bail (see Automatic referral for consideration of immigration bail)
where they can obtain further information

For prisoners, the decision maker will send a bail prison pack and covering letter (BAIL 404) to the relevant prison team. This pack contains the following notices:

BAIL 403
form B1
BAIL 401
BAIL 306 (if a financial condition is likely to be considered appropriate)

There must be evidence to demonstrate that information about bail has been provided in the following situations:

detaining team, including ICE teams, Border Force and Reporting and Offender Management – during encounter or detention on reporting – record service on Atlas/or port file
Foreign National Offender Returns Command / Nexus High Harm – send Bail Prison Pack with covering letter (BAIL 404) to the relevant Her Majesty’s Prisons’ team and record signed confirmation of conveyance on Atlas

Question 9

Immigration bail: Secretary of State

Accepted Answer

The page tells you about the Secretary of State immigration bail process.

The Secretary of State may consider for a grant of immigration bail a person who is detained – or who is liable to be detained – under one of the provisions mentioned under Eligibility for bail. The consideration may take place whether or not the person has submitted an application for immigration bail.

In the following circumstances, the relevant team can decide to grant bail without an application form, when:

a person is first encountered at a port or elsewhere in the UK, Border Force officers must complete an Immigration Bail Risk Assessment form as part of this process, see Immigration Bail Process Map
a person is detained and a casework team proactively decides that detention is no longer appropriate
Foreign National Offender Returns Command decides not to detain a Foreign National Offender (FNO) for deportation action at the end of criminal sentence

Application for bail

Detained persons must submit their applications for Secretary of State immigration bail using form BAIL 401. This form is available on GOV.UK If the decision maker receives an application in another format, it may be rejected, and a BAIL 405 notice sent directing the person to the correct form.

The decision-making unit must log all applications for Secretary of State bail on Atlas. When doing this:

for NRC cases ‘date applied’ is when the Customer Liaison Team (CLT) receives the application
in all other cases the ‘date applied’ must be the date the decision-making unit received the application

Decision makers must make their decisions and send a response to the applicant within 10 working days of the date recorded under ‘date applied’.

Level of authority to grant or refuse immigration bail

The minimum level of authority to grant, or refuse following application, immigration bail to detained individuals on behalf of the Secretary of State is HEO / CIO / HO level.

Time served foreign national offenders may generally only be granted bail if agreed at Assistant Director level, and Strategic Director authorisation has been obtained. However, bail may be granted with authorisation at SEO / Inspector / SO level if all of the following apply:

the individual was detained to take part in an interview scheme with their embassy or high commission
the individual complies with that interview or the interview is cancelled and not re-scheduled in the short term
the individual has previously been compliant with reporting and/or other conditions of immigration bail
there is no short-term prospect of returning the individual following the interview
grant of bail is within 7 days of the individual being detained for the interview scheme

Individuals managed by the relevant unit (see below) may only be granted bail if grade 5 authorisation is obtained.

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Immigration bail consideration process: non-detained

See also: Conditions of Immigration Bail.

If the person you are considering for a grant of immigration bail is not detained, you must take into account the requirements set out under exercising the power to grant immigration bail.

Immigration bail consideration process: detained

Immigration bail Consideration of bail process: detained: FNOs, with financial condition

If you are considering attaching a financial condition to one or more other conditions of granting bail to an FNO, the following should happen, if relevant:

if an application for Secretary of State bail (BAIL 401) is received, the FNO must provide details of possible Financial Conditions Supporters
if bail is being considered without an application from the detained person, the decision maker must ask the person for possible Financial Condition Supporters in the event of bail being granted
if bail is considered appropriate the decision maker must complete the BAIL 407 proposing the grant of bail and set the appropriate financial condition(s) and refer for authorisation
if bail is authorised, fully or conditionally, the decision maker must conduct any necessary checks on the Financial Condition Supporters – this must include any additional checks the authoriser may request with the intention to grant bail
the decision maker must send the BAIL 301 (Financial Condition Supporter Agreement) to the supporter by email giving 2 working days to sign and return:
- if this timescale is unrealistic, for example if no email address is provided, it will be necessary to adjust it to allow for the BAIL 301 to be sent out and returned by post
- decision makers may also allow Financial Condition Supporters more than 2 working days to return BAIL 301s sent by email if considered necessary

Outcome of consideration

Following receipt of a person’s application for immigration bail, decision makers must decide whether immigration bail should be granted or refused. Decision makers must document the reasons for their decisions on Atlas and/or the person’s case / port file.

Grant of immigration bail

If the Secretary of State decides to grant immigration bail, the decision maker must notify the person in writing. The notice (BAIL 201) must include:

when the grant of immigration bail begins
the bail conditions

Under paragraph 3(8) of Schedule 10, the start of a grant of immigration bail may be specified to be conditional on arrangements stipulated in the notice being in place to ensure that the person is able to comply with the bail conditions. This provision is likely to be most relevant in cases where a grant of immigration bail is subject to:

a residence condition – while arrangements are made to secure accommodation if it is not already available
an electronic monitoring condition – while arrangements are made to install the necessary equipment

The bail conditions imposed must be in line with the requirements of conditions of immigration bail. Decisions on the appropriate conditions must be made on the facts of the individual case. Conditions must:

enable the Home Office to maintain appropriate levels of contact with the individual
reduce the risk of absconding or other non-compliance
minimise potential delay in the Home Office becoming aware of any non- compliance
be in furtherance of facilitating the individual’s return

In Foreign National Offender Returns Command cases, decision makers should consider any criminal licence conditions fully to ensure any immigration bail conditions do not conflict.

If decision makers in detained and non-detained cases wish to set up reporting to facilitate detention on reporting (DOR) or a contact management regime when BAIL 201 is served, then they must use the ICE Finder to identify the appropriate reporting location and follow the instructions to set up the first reporting event.

For some reporting centres, the details of the first reporting event will be stipulated and decision makers can simply follow the instructions.

For other reporting centres, decision makers will need to contact the reporting centre directly. The reporting centre will then review and set up any further reporting events.

The exception to this is Foreign National Offender Returns Command or relevant unit (see below) cases and those required to report to a police station. Decision makers must communicate with the appropriate reporting centre in such cases.

See Reporting and Offender Management for further details on communication between decision makers and reporting centres.

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Issuing bail paperwork

If a decision was taken to detain the individual but the Detention Gatekeeper rejects it, the referring officer is responsible for issuing the bail paperwork. If the Gatekeeper has accepted the individual in detention but at the 24-hour review stage decides to release them, then the Gatekeeper is responsible for issuing the bail paperwork.

The decision maker responsible for issuing the bail paperwork must prepare and issue the following documents to implement the decision:

if not already done, issue relevant notice containing liability to removal / detention wording (for example, the Notice of Liability to Remove (NOL), IS.81.
Grant / Variation of Immigration Bail (BAIL 201), although business areas using any of the following documents do not need to serve a separate BAIL 201 notice unless they are varying existing conditions:
- ICD.3971B IA (email or post)
- ICD.3971D IA (email or post)
- ICD.2704
- ICD.1183 IA
- ICD.3052 IA
- ICD.3912
- ARN.0001
- ARN.0002
- ARN.0003
- ARN.0004
- ARN.0005

The following further notices may need to be issued depending on the arrangements being made:

Notice to Carrier of Self Check-In Arrangements (BAIL 202(SCI)), if applicable
Financial Condition Supporter Agreement to Immigration Bail Financial Condition (BAIL 301), if applicable
Notice to Police of Immigration Bail Reporting Condition (BAIL 205), if applicable
Notice to Electronic Monitoring Contractor (BAIL 206), if applicable
Release Order (IS.106) to IRC or prison, if the person is detained

If a grant of immigration bail is subject to a financial condition, the person being granted the bail and the Financial Condition Supporter, if applicable, must sign the Grant/Variation of Bail document (BAIL 201) and Financial Condition Supporter Agreement to Financial condition (BAIL 301), respectively. The decision maker must make copies of the signed documents and place these on the bailed person’s port or case file.

Updating Atlas

All decisions to grant bail must be recorded on Atlas, including the date the decision was made.

Notifying interested parties

If a detained person is granted immigration bail, the decision maker must notify the following interested parties:

Detention Gatekeeper
detainee escorting and population management unit (DEPMU)
place of detention, to arrange release
relevant casework unit managing non-detained cases
electronic monitoring contractor (if electronic monitoring is imposed)
offender manager (if a FNO RC case)
relevant reporting centre / police station (if the person is required to report to the police)
local police (if they have an interest, for example, if releasing a high-risk person into their area)

Refusal of immigration bail

If the Secretary of State refuses to grant immigration bail, the decision maker must notify the person using form BAIL 402 (refusal of Secretary of State Bail Application) and record it on the person’s detention and case progression review form. Any decision to refuse must be authorised at minimum HEO level.

Decision makers must use paragraph 3(2) of Schedule 10 as a non-exhaustive checklist for structuring the decision-making process. This structured approach must be reflected on Atlas, which must be updated to set out the reasons for refusing bail in line with the Consideration Process. In the interests of consistency, decision makers should use the following wording when recording the reasons on Atlas:

‘The presumption is in favour of immigration bail and I have considered all of the matters stipulated in paragraph 3(2) and consider the following applicable in this case….’

This wording must not be used without including the reasons why bail has been refused.

The decision maker must update Atlas to record the outcome as ‘refused’, including the date of refusal.

Repeat immigration bail applications

There is no limit on the number applications for immigration bail a person can make to the Secretary of State, or when an application can be made. Where a repeat application has been made but there has been no change in the person’s circumstances, a bail application may be refused by cross-referring to the same reasons as the previous application.

Question 10

Immigration bail: First-tier tribunal

Accepted Answer

This page tells you about the First-tier Tribunal immigration bail process.

A person who is detained under one of the provisions listed under Eligibility for immigration bail can apply to the First-tier Tribunal for a grant of immigration bail. The First-tier Tribunal is independent of the Home Office. This means that while the Home Office can oppose bail and/or propose conditions to be attached to a grant of immigration bail, the First-tier Tribunal is not obliged to follow the Home Office’s wishes.

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2604/2014) govern the procedures to be followed in relation to bail applications to a judge of the First-tier Tribunal.

The application form for First-tier Tribunal bail (B1) is given to detained persons at the point of initial detention. To make an application, the person, or their representative, sends the completed form to the First-tier Tribunal directly. The role of the Home Office in First-tier Tribunal bail is to respond to the bail application by:

producing a bail summary (BAIL 505) to justify the Home Office’s case for detaining the individual and the reason(s) why bail should be refused, or what conditions would be considered appropriate should bail be granted
being represented by a Presenting Officer (PO) at the bail hearing

The Home Office also has a duty to refer certain cases to the Tribunal automatically for consideration.

The Tribunal Procedure Rules require applications for immigration bail to be subject to a hearing. The exception is if a person’s bail application had been refused following a hearing in the preceding 28 days and there has been no material change in the person’s circumstances.

Consideration of cases

Listing an immigration bail hearing

His Majesty’s Courts and Tribunals Service (HMCTS) is responsible for listing bail hearings, and this is, where possible, done within 3 working days of receiving a bail application. HMCTS must provide the ALAR Bail Team with copies of bail applications as soon as reasonably practicable following receipt.

The format of bail hearings may vary according to the preference of the presiding judge, but a typical hearing will be as follows:

the detained person or their representative first presents the case for bail
the Home Office Presenting Officer (PO) responds, putting forward reasons for opposing bail as outlined in the BAIL 505 bail summary – the PO will also put forward any new information or updates since the BAIL 505 was written, such as a removal date
the person or their representative then has the opportunity to argue against the points made in the bail summary
if there is a Financial Condition Supporter (FCS) present they may be asked questions by the representative (or detained person)
the PO may be given the opportunity to cross-examine the FCS (but this is not routine)
both parties then have the final opportunity to deliver submissions on the suitability of the FCS
the judge is able to ask any questions deemed necessary at any stage once submissions are completed, the judge will decide whether or not to grant bail

Detained persons will normally attend their bail hearings via video link. On rare occasions, where there is a practical reason why it is not possible or suitable for the hearing to take place via video link the Tribunal will ask the SSHD to arrange for the detained person to attend in person.

While it is not mandatory for Financial Condition Supporters to attend the bail hearing, the expectation is that they will attend, and absence may well undermine the chances of a successful outcome for the person.

All parties are expected to provide any documentary evidence they intend to rely on in advance of the bail hearing, either as part of the bail application or with the signed BAIL 301. For example, Financial Condition Supporters must supply proof of identity and immigration status, bank statements and proof that they can accommodate the person so that appropriate checks can be conducted. Failure to provide this evidence in advance of the hearing will result in the Immigration Judge being told the FCS is unsuitable.

Bail summary

The bail summary should set out the reasons for opposing bail (if bail is to be opposed), and any conditions that would be considered necessary were the First-tier Tribunal to grant bail. A First-tier Tribunal judge will grant immigration bail where there is no sufficiently good reason to detain a person and where lesser measures can provide adequate alternative means of control. In deciding whether to grant immigration bail, a First-tier Tribunal judge must have regard to the requirements set out under exercising the power to grant immigration bail. In particular the IJ will have regard to whether the person will be removed within a reasonable timescale. It is therefore important to set out in the bail summary the measures taken to progress the case towards removal and any progress since the last bail hearing (if appropriate).

A judge may also focus on:

reason or reasons why the person has been detained
length of detention to date and likely future duration

Additional information on what factors First-tier Tribunal judges normally consider in reaching a decision on bail applications is available in the related link: Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber).

When staff in the ALAR Bail Team are notified of an application for immigration bail to the First-tier Tribunal they will request a bail summary from the decision maker. They do this by sending the decision maker:

a form requesting a bail summary
the bail application
any supporting documents

On receiving the request, the BAIL 301 (FTT) must be sent to the Financial Condition Supporter for completion as a matter of urgency and by email if possible. The decision maker should ensure they conduct all the required checks on any Financial Condition Supporters included in the bail application and complete the bail summary template (BAIL 505) accurately and in full setting out the reasons why the bail application is being opposed by the Home Office.

Bail summaries must be full, fair and accurate. The decision maker completing the bail summary must ensure that all relevant issues are covered in the bail summary and must also include:

the detained person’s personal details
details of the Financial Condition Supporters the person has put forward, if any and the result of any checks.
a full immigration history and chronology
the reasons for opposing bail
whether removal directions are set for the person to be removed from the UK within 21 days of the bail hearing
date of last hearing at which bail was refused, if any and actions taken since the last hearing to resolve the barriers to removal
the conditions the Home Office wishes to be set in the event that bail is granted
an assessment of whether the person would meet the exceptional criteria for provision of accommodation if bail is granted
a request for the Tribunal to direct management of bail to be transferred to the Secretary of State

When completing the bail summary, the decision maker must update any Financial Condition Supporter details on Atlas.

The fully completed bail summary must be returned to the ALAR Bail Team in time for it to be filed with the First-tier Tribunal by 2pm on the day before the hearing at the latest. In practice, this means sending it to the ALAR Bail Team no later than 12 noon on the day before the hearing.

If the ALAR Bail Team is unable to file the bail summary with the First-tier Tribunal by the deadline because it was notified of the bail application fewer than 24 hours before the hearing, the bail summary must be filed as soon as is reasonably practicable. In addition to filing the bail summary with the First-tier Tribunal, the ALAR Bail Team must also, by 2pm on the day before the hearing, send the bail summary to

the detained person at their place of the detention
the detained person’s representative, if any

Bail summary: additional requirements if removal scheduled within 21 days of hearing

If directions are in force for the removal of the detained person from the UK within 21 days of the bail hearing, then the decision maker must include the following additional information in the bail summary:

details of notice of removal – includes notice of a removal window, notice of removal directions or limited notice of removal, as appropriate – see Returns management for guidance on the different notices of removal
the contact details of the primary and secondary contact SCS, acting on behalf of the Secretary of State in respect of consent (see Consent to bail: Secretary of State below), to provide instructions to the Presenting Officer if the judge of the First-tier Tribunal intends to grant immigration bail. For this reason, it is important that the primary and secondary contacts are made aware in advance of the date and time of the hearing.
evidence of directions for removal being in force

Directions for removal within 21 days: evidence

See also: Consent to bail: directions in force for removal within 21 days of bail decision.

One of the following must be submitted with the bail summary in these cases as evidence of removal directions having been set for the person’s removal within 21 days:

if the individual has been notified of the full details of their removal, a copy of the Notice of Departure Details or IS152B as appropriate
if the individual is being removed on a chartered flight, a copy of the charter manifest – redacting information on other individuals – may be used

Removal directions set after bail summary completed

If removal directions are set for within 21 days of the bail hearing after the bail summary has already been completed and sent to the ALAR Bail Team, the decision maker must notify the ALAR Bail Team without delay.

Bail summary: requirements for auto-referrals

The decision maker must complete a bail summary (BAIL 505) for all eligible detained persons who have not opted out of the automatic referral process.

See also – Automatic referral for consideration of immigration bail.

If directions are in place for a detained person to be removed from the UK within 21 days of the bail hearing, the First-tier Tribunal cannot grant immigration bail to the person without the Secretary of State’s consent.

In cases where the provision applies, the judge of the First-tier Tribunal will explain to the detained person at the beginning of the hearing the requirement for the Home Office to consent to any grant of bail.

If the judge intends to grant bail, he or she will announce this in open court and will issue a note setting out reasons why they are minded to grant bail. The judge will then ask the Presenting Officer (PO) if the Secretary of State consents. The PO will ask the judge for a brief adjournment in order to seek a decision on consent. It is important that consent is sought at that specific point in the hearing, as opposed to prior to the hearing, so that any new evidence which emerges at the hearing can be taken into account by the Senior Civil Servant (SCS, usually a grade 5) named on the bail summary as having responsibility for considering consent.

The SCS will not be familiar with the case. The PO will therefore need to provide them with a verbal summary of the case, explain if there is new evidence or new barriers to removal which have arisen since the decision to oppose bail was made and the judge’s reasoning for deciding to grant bail.

In giving the SCS a verbal summary of the case, the PO should:

summarise, briefly, the person’s immigration history, including any history of:
- complying with a reporting condition
- non-compliance
- prior attempts to remove
summarise any criminal record the person may have
explain if there were any barriers to removal known to the Home Office at the time the bail summary was written and when it is expected that those barriers will be cleared
mention the date for which removal directions are fixed

If there is new evidence or a new barrier to removal, the PO should:

explain the nature of the new evidence and when it came to light
explain the significance or potential significance of that new evidence in terms of removing the person
explain any new barriers to removal and the potential significance of that new barrier on removing the person
so far as possible, explain the likelihood of removing that barrier and/or when clearing that barrier might be achieved

When explaining the reasons the judge has given for why, in their opinion, the person should be granted bail, the PO must explain the:

factors the judge expressly said they took into account
factor or factors that led the judge to reach their decision

It is the SCS’s responsibility to give or refuse to give consent immediately after hearing what the PO has explained to them.

The detained person will not be granted bail if the SCS (on behalf of the Secretary of State) does not consent.

The consideration of consent must be highly fact specific and based on the circumstances of the individual case, including if detention remains lawful. In considering consent, significant weight must be given to the intention of the presiding judge to grant bail. The SCS must give proper regard to the judge’s decision and any disagreement with this must be on a rational basis.

The power not to give consent may be exercised where for example, it is considered that the judge has not correctly weighed the high risk of absconding in coming to the decision to grant bail or given enough weight to public protection (if appropriate), the detained person’s immigration history, the risk of future failure to surrender to custody, lack of reliable sureties and lack of an appropriate address. This is not an exhaustive list of reasons why consent may be refused.

The power to not give consent cannot be exercised if, during the hearing, the PO does not submit evidence showing that directions for the detained person’s removal within 21 days are in force.

If the SCS refuses consent, the PO will need to contact the decision maker named on the bail summary to convey the outcome. Ideally, the PO should do this during the adjournment once instructions have been received.

The PO must complete the ‘consideration of consent to bail’ pro forma, setting out the reasons the SCS has given. The PO must ensure that a copy of the pro forma is emailed to the decision maker.

On returning to the hearing, the PO must give the completed ‘consideration of consent to bail’ pro forma to the judge and inform the judge that a letter outlining the Secretary of State’s reasons for refusing consent will be served on both the detained person and the First-tier Tribunal within 48 hours.

The judge will inform the detained person that the Home Office has not consented to bail which means the person will not be granted bail.

A decision to refuse consent will be challengeable by way of judicial review. All decisions on consent must therefore be recorded on file and Atlas.

Once the PO informs the decision maker that the SCS (on behalf of the Secretary of State) has refused consent to bail, the decision maker must update Atlas, detailing the name of the SCS who refused consent and the reasons for the decision.

The decision maker must, within 48 hours of the bail hearing, prepare written notification of the reasons for refusing consent using the IS151F / IS151F CCD template on Atlas. The decision maker must arrange for the completed IS151F / IS151F CCD to be served on the detained person and the First-tier Tribunal within 48 hours of the bail hearing.

See the court tribunal finder service for telephone and fax numbers and email address for the relevant IAC hearing centre.

First-tier Tribunal grants immigration bail

If immigration bail is granted by a judge of the First-tier Tribunal it is a matter for the judge to decide on the appropriate bail conditions, having regard to requirements mentioned in Conditions of immigration bail and the guidance set out in Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber).

The PO must specify any conditions which the Secretary of State thinks should apply and why, taken from the bail summary (BAIL 505).

Consideration should be given as to whether the case should be transferred to the Secretary of State to manage the bail. If transfer is considered appropriate, the PO must make oral submissions to the judge requesting this.

If a bail application to the First-tier Tribunal is successful, the Tribunal must notify the detained person in writing and give a copy of the notice to the Secretary of State.

The PO must update the bail outcome as a grant on Atlas and upload a hearing minute sheet. This should be actioned following the hearing as soon as is reasonably possible to assist those responsible for planning the individual’s release.

The notice must specify:

when the grant of bail starts
the bail conditions

The start of a grant of immigration bail may be specified to be conditional on arrangements stipulated in the notice being in place to ensure that the person is able to comply with the bail conditions. The judge’s clerk will complete and provide the necessary documents to the parties.

If the First-tier Tribunal grants conditional bail but specifies a deadline by which the condition must be fulfilled to allow the bail grant to start, the Tribunal’s decision will continue to have effect after the date specified even if the required pre-condition is not fulfilled. That is unless the bail grant notice explicitly states that bail lapses if the required pre-condition is not fulfilled by the date specified. For example, the Tribunal may grant bail subject to an address being provided within 14 days to enable the person to meet a residence condition. The grant of bail by the Tribunal will not lapse automatically if a suitable address is not found by the end of the 14-day period unless that outcome is mentioned explicitly in the bail grant notice.

There may be circumstances in which the bail grant notice does not provide for bail to lapse if a pre-condition is not fulfilled by the start date specified and there is no prospect of it ever being met. An example is where the Tribunal grants bail subject to the Secretary of State providing accommodation, but the person does not meet the criteria to be provided with such accommodation. In this situation, the decision maker will need to do one of the following:

apply to the Tribunal to vary (by removing) the relevant condition or conditions of bail, if the Tribunal has retained bail management
vary the relevant condition or conditions of bail as appropriate, if the Tribunal has transferred bail management to the Secretary of State

If there is a prospect of a pre-condition being met after a specified bail start date, for example because the individual qualifies for accommodation, but a suitable address has not yet been found, it will be necessary to seek an extension of time from the Tribunal in order to meet that condition. However, the conditional bail itself will not lapse.

When bail has been granted on the condition that accommodation is provided by the Secretary of State, the First-tier Tribunal may set a review hearing to take place within 28 days of conditional bail being granted to establish the reasons for any delays in the event that suitable accommodation hasn’t been sourced. The Home Office will be required to provide evidence of all efforts taken to secure accommodation and if a written submission is requested, the conditional bail update form (BAIL 506) must be completed by casework teams to detail any barriers impacting the obtaining of accommodation.

The case owner must record on Atlas when a detention restriction is closed and the IJ Bail restriction is effective. In this instance there is no need to issue an IS.106 (Release Order) to the IRC as the grant of bail court order is sufficient to release the person.

First-tier Tribunal refuses bail

If a bail application to the First-tier Tribunal is unsuccessful, the Tribunal must notify the person in writing and give a copy of the notice to the Secretary of State. The judge’s clerk will complete and provide the necessary documents to the parties.

The PO must update Atlas with the bail refusal.

Withdrawal of First-tier Tribunal bail application

Should a bail application be withdrawn, the PO must update Atlas with one of the hearing outcomes:

withdrawn pre-hearing
withdrawn at hearing

Question 11

Varying immigration bail conditions

Accepted Answer

This page tells you about varying the conditions of immigration bail. See also: Electronic monitoring condition: limitation on variation.

The power to vary the condition or conditions of immigration bail is in paragraph 6 of Schedule 10. This provides for any of the conditions of immigration bail granted to a person to be amended or removed, or for one or more new conditions from immigration bail conditions: general to be imposed on the person.

The power to vary immigration bail conditions can be exercised by the Secretary of State in either of the following circumstances:

the grant of immigration bail was by the Secretary of State
the grant of immigration bail was by the First-tier Tribunal but the Tribunal has explicitly directed the power can be exercised by the Secretary of State

The power to vary immigration bail conditions can be exercised by the First-tier Tribunal if the immigration bail was granted by the Tribunal and it has not directed that the power to vary bail conditions can be exercised by the Secretary of State.

Transfer of bail from the Tribunal to the Secretary of State

In any case where the Tribunal has directed that the Secretary of State can exercise the power to vary bail, the power can no longer be exercised by the Tribunal and the Tribunal cannot consider an application to vary conditions thereafter. The decision whether to direct that the power to vary conditions of bail should be given to the Secretary of State rests with the First-tier Tribunal where the Tribunal grants immigration bail.

The Secretary of State cannot vary any condition of bail if the Tribunal has not so directed and so should consider asking the Tribunal to direct that bail be managed by the Secretary of State:

in the bail summary (BAIL 505)
at the bail hearing
where the Secretary of State contacts the Tribunal, using form B3, seeking to vary the condition or conditions of bail – for example a change to a reporting requirement
where the Secretary of State informs the Tribunal, using BAIL 303 (Breach of Bail Conditions Summary), that the individual has failed, is failing, or is likely to fail to comply with a condition of bail

Transfer of bail with financial condition

If the Tribunal grants bail with a financial condition but agrees to transfer management of bail to the Secretary of State, the Home Office decision maker will need to inform any Financial Condition Supporter of the appropriate method of payment using form BAIL 305 (Payment information).

If the Tribunal has set a financial condition and has directed that bail can be varied by the Secretary of State, then it is for the Secretary of State to recover any payment liability if the bailed person breaches conditions to which the financial condition is attached.

If the Tribunal does not direct that the Secretary of State manage the case, then the Tribunal keeps complete control, including any decision to vary the conditions, dealing with any breach of conditions and recovering any payment liability under a financial condition.

Variation of bail by the Secretary of State

Decision makers must use each meaningful interaction with the person or the case as an opportunity to proactively review the person’s bail conditions. This is to ensure bail conditions remain appropriate in all the circumstances. Decision makers must consider all requests for variation and grant reasonable requests where it is appropriate to do so, having regard to the matters listed under Exercising the power to grant immigration bail. However, updating a change of circumstance (for example, a change of contact telephone number) would not constitute a variation of a bail condition unless a condition was for the person to be contactable on a specified telephone number.

If the Secretary of State exercises the power to vary immigration bail conditions, the decision maker must issue a grant/variation of bail form (BAIL 201) setting out the terms of the variation. The re-issued BAIL 201 must contain all the immigration bail conditions that continue to apply to the individual, not just the condition that was varied.

If there is a financial condition attached to one of more of the varied conditions, the decision maker must notify any Financial Condition Supporter and ask them to sign a new Financial Condition Supporter agreement (BAIL 301).

If the Secretary of State refuses a request to vary immigration bail conditions, the decision maker must issue a notification of refusal of request to vary bail conditions form (BAIL 406).

Where bail conditions are varied, the decision maker must update Atlas.

Variation of bail by the Tribunal

Where the Home Office applies to the First-tier Tribunal for a variation of bail conditions the:

decision maker completes the B3 (Variation of Bail Conditions and Transfer) and sends it to the ALAR Bail Team
ALAR Bail Team sends the completed B3 to the Tribunal for consideration
Tribunal sends the completed B3 to the bail party requesting a written response Where the bailed person applies for a variation of bail conditions the:
applicant must complete form B2 (Tribunal’s Application for Variation form) and send it to the Tribunal
Tribunal notifies ALAR Bail Team and requests a response from the Home Office
ALAR Bail Team contacts decision maker to confirm whether the Home Office agrees or not – the decision maker has 7 days to respond
decision maker will then complete the Home Office response to the variation request (BAIL 304) and forward to the ALAR Bail Team
ALAR Bail Team will send the above notice to the Tribunal for consideration, together with any request to transfer management of bail to the Secretary of State

Where both sides consent to the variation requested, the Tribunal will normally consider the request on the papers. The Tribunal will send the bail decision to the bail party and the decision to vary/to transfer bail to the ALAR Bail Team. The ALAR Bail Team then inform the decision maker of the outcome.

If one side disagrees, the Tribunal will write to the bailed person and the ALAR Bail Team, issuing an oral hearing notification. The ALAR Bail Team will be notified of the listing and will inform the decision maker. The hearing follows the normal bail process. The ALAR Bail Team will update Atlas with the outcome.

Variation: notification of outcome

If the First-tier Tribunal exercises, or refuses to exercise, the power to vary immigration bail conditions, the Tribunal must notify the person who is on immigration bail, in writing, and provide a copy of the notice to Secretary of State.

Electronic monitoring condition: limitation on variation

The First-tier Tribunal may not exercise the power to amend an electronic monitoring condition imposed on a person granted immigration bail from detention, or liable to be detained, under:

paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)
section 36(1) of the UK Borders Act 2007 (detention pending automatic deportation)

Question 12

Interim relief in the form of immigration bail

Accepted Answer

Notifying Counsel on bail conditions where a person is seeking release from detention as interim relief from the High Court

Where a detained person has lodged a judicial review regarding the lawfulness of their ongoing detention, and it is possible that interim relief in the form of release from detention is sought from the High Court, the following process will apply.

Instructions must be provided by the relevant case work team to the Litigation Operations caseworker on the appropriate immigration bail conditions to be set if the person is released from detention following the court’s decision. A request must also be made to transfer management of bail to the Secretary of State in the event that the court does not automatically direct management to the Secretary of State.

On receiving the instructions, the Litigation Operations caseworker must provide these proposed bail conditions to GLD, to ensure they are included within the instructions for Counsel acting on behalf of the Secretary of State in the case.

Cases which have been granted release by the High Court

Where a person’s release has previously been ordered by the High Court, and it is considered the bail conditions set should be varied, for example to include reporting or EM conditions where necessary, caseworkers will first need to check whether the High Court has transferred management of bail to the Secretary of State.

Where this is not the case, caseworkers will need to set out the bail conditions to be varied and provide these to the Litigation Operations caseworker. The Litigation Operations caseworker will instruct GLD to make an application to the High Court to request a variation of bail conditions, and transfer of management of bail to the Secretary of State.

Until the High Court varies bail or transfers the management of bail to the Secretary of State, reporting and EM conditions cannot be imposed where they have not already been set by the High Court. Further requests to vary this period of bail to include these conditions will need to be made to the High Court.

Official – sensitive: start of section

The information in this section has been removed as it is restricted for internal Home Office use only.

Official – sensitive: end of section

Question 13

Meeting bail conditions: Secretary of State support

Accepted Answer

With immediate effect and until further notice, the use of Meeting bail conditions: Secretary of State support as set out in this instruction is suspended and the separate Immigration bail interim guidance must be used instead.

This page tells you about measures in place that you may use to help a person meet immigration bail conditions in specified circumstances.

Accommodation

There may be circumstances where a person is granted immigration bail subject to a residence condition requiring them to live at a specified address, and the person would not be able to support himself or herself at that address without the assistance of the Secretary of State. Under paragraph 9 of Schedule 10, the Secretary of State may provide, or arrange for the provision of, facilities for the person’s accommodation at that address to enable the bail condition to be met, but only in exceptional circumstances.

Exceptional circumstances

The power may be exercised only if the Secretary of State thinks that there are exceptional circumstances to justify doing so. The types of cases where exceptional circumstances will normally justify providing accommodation under paragraph 9 of Schedule 10 are SIAC cases, Harm cases and European Convention on Human Rights: Article 3 cases.

SIAC cases

These are cases involving people granted bail by the Special Immigration Appeals commission (SIAC), where exceptionally strict bail conditions, including a residence condition, are imposed to control the risk posed by the individual

Harm cases

Cases involving:

people – including Foreign National Offenders (FNOs) – who are granted bail and who are currently assessed by Her Majesty’s Prison and Probation Service (HMPPS) as being at a high or very high risk of causing serious harm to the public
FNOs at high risk of harmful reoffending against an individual – for example, offences of domestic burglary, robbery, sexual assaults and violence – who are assessed using the Offender Group Reconviction Scale (OGRS) with a minimum score of 70% where that person has nowhere suitable to live in accordance with their probation licence and/or multi-agency public protection arrangements (MAPPA), for a limited period, or otherwise at the discretion of the Home Secretary in the interest of public protection.

Serious harm: definition

For the purpose of Harm Cases in this section, the expression ‘serious harm’ is defined as:

‘An event, which is life-threatening and/or traumatic, from which recovery, whether physical or psychological, can be expected to be difficult or impossible.’

The level of risk of serious harm is the likelihood of this event happening. The levels are:

low: current evidence does not indicate a likelihood of causing serious harm
medium: there are identifiable indicators of serious harm – the offender has the potential to cause such harm but is unlikely to do so unless there is a change in circumstances, for example failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse
high: there are identifiable indicators of risk of serious harm – the potential event could happen at any time and the impact would be serious
very high: there is an imminent risk of serious harm – the potential event is more likely than not to happen imminently and the impact would be serious

The categorisation of risk is refined by reference to those who may be the subject of that harm; they include:

the public, either generally or a specific group such as the elderly, vulnerable adults – for example, those with a learning disability – women or a minority ethnic group
known adult such as a previous victim or partner
children, who may be vulnerable to harm of various kinds, including violent or sexual behaviour, emotional harm or neglect
staff, anyone working with the offender whether from Probation, the Prison Service, the police or any other agency – this relates to all forms of abuse, threats and assaults that arise out of their employment

European Convention on Human Rights: Article 3 cases

It may be appropriate to consider using the power to provide accommodation under paragraph 9 to accommodate individuals who are not SIAC or harm cases, but only usually where both of the following circumstances apply:

they do not have adequate accommodation or the means of obtaining it
the provision of accommodation is necessary in order to avoid a breach of their human rights (usually rights under Article 3 ECHR)

The following categories of migrant will in practice be able to obtain adequate accommodation from another source. It will therefore not usually be necessary to provide accommodation under the paragraph 9 power for the purposes of preventing a breach of their Article 3 ECHR rights:

asylum seekers: they may be provided with accommodation under the powers set out in sections 95 or 98 of the Immigration and Asylum Act 1999 if they do not have adequate accommodation or the means of obtaining it - if an asylum seeker being released from immigration detention on bail does not appear to have adequate accommodation or the means of obtaining it and is not a SIAC or Harm case it will usually be appropriate to arrange accommodation under section 98 of the 1999 Act
failed asylum seekers: they may be provided with accommodation under the powers set out in section 4(2) of the 1999 Act if they do not have adequate accommodation or the means of obtaining it
other migrants who have dependent children: if the family cannot obtain adequate accommodation it will usually be available through the duties local authorities have to safeguard and promote the welfare of children under Section 17 of the Children Act 1989, or the equivalent in the devolved administrations
migrants accommodated under the provisions of the Care Act 2014, or the equivalent in the devolved administrations – generally, they will have been accommodated because they have a serious disability, exceptionally, however, accommodation may be arranged temporarily under the power in paragraph 9 whilst the case is referred to a local authority and pending a decision by that local authority as to whether the duty to provide accommodation under the Care Act 2014 (or equivalent) applies

Undertaking a human rights assessment

The consideration of whether the provision of accommodation is necessary to avoid a breach of the person’s human rights will usually require an assessment of whether they are likely to suffer inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) if they are not provided with accommodation and other assistance to meet their daily living needs while they are in the UK. However, decision makers should only provide accommodation for these reasons if it is clear that the person cannot reasonably be expected to leave the United Kingdom. Otherwise, individuals can avoid a breach of their human rights by leaving the UK.

Article 3 of the European Convention on Human Rights (ECHR) is the prohibition on torture or inhuman or degrading treatment or punishment.

When it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life, this is likely to be considered inhuman or degrading treatment contrary to Article 3 of the ECHR (see: R (Limbuela) v Secretary of State [2005] UKHL 66).

The decision maker will therefore need to assess whether the consequences of a decision to deny a person accommodation would result in a person suffering such treatment. To make that assessment it may be necessary to consider if the person can obtain accommodation and support from charitable or community sources or through the lawful endeavours of their families or friends.

Where the decision maker concludes that there is no support from any of these sources then there will be a positive obligation on the Secretary of State to accommodate the individual in order to avoid a breach of Article 3 of the ECHR.

However, if the person is able to return to their country of origin, including using support available under the Voluntary Returns Service, and thus avoid the consequences of being left without shelter or funds, the situation outlined above is changed. This is because of the following:

there is no duty under the European Convention on Human Rights to support foreign nationals who are freely able to return home (see: R(Kimani) v Lambeth LBC [2003] EWCA Civ 1150)
if there are no legal or practical obstacles to return home, the denial of support by a local authority does not constitute a breach of Human Rights (see: R (W) v Croydon LBC [2007] EWCA Civ 266)

A genuine obstacle would only usually exist if either:

the person is unable to leave the UK because of a physical impediment, or other medical reason:
- the test here is usually whether the person is physically able to travel by air to their country of origin or another country where they may be admitted
- a person who claims to be unfit to travel will usually need to provide supporting evidence from a medical practitioner
the person is unable to leave the UK because they do not have the necessary travel documentation but are taking reasonable steps to obtain one:
- reasonable steps should usually be taken to mean that they have applied for the necessary travel document from their national embassy, but may include where they are complying with Home Offices processes to obtain an emergency travel document to facilitate their return

Unwillingness to return is not the same as inability to return, so where there is a genuine obstacle to return the person can be expected to take steps to resolve the obstacle where it is reasonable to do so (for example by applying for a travel document through the national embassy or high commission).

If there are no legal or practical obstacles preventing the person leaving the United Kingdom, it will usually be difficult for a person to establish that the Secretary of State is required to provide support in order to avoid breaching their human rights.

Clearly, however, if there are obstacles in place that mean the person cannot leave the United Kingdom, or they are taking reasonable steps to put themselves in a position whereby they can leave the United Kingdom but there is likely to be an unavoidable delay in those steps reaching fruition, then it may be necessary to continue to provide accommodation support to avoid the inhuman treatment and breach of Article 3 rights described above.

If a decision maker is unsure as to whether it would be appropriate to provide, or continue to provide, support in any given case, a senior caseworker should be consulted as part of your decision-making process.

Other categories of migrant likely meet the Article 3 test

There are a small number of migrants who are likely to require accommodation under paragraph 9 to avoid a breach of their Article 3 rights, if they do not have accommodation or the means of obtaining it. They will have at one time claimed asylum but are not eligible to receive accommodation under sections 95, 98 or 4(2) of the 1999 Act. These are:

people who have withdrawn their asylum claim, including where the claim has been treated as impliedly withdrawn under paragraph 333C of the Immigration Rules, but have since made further submissions and the submissions are still outstanding – if it is decided to treat the further submissions as a fresh claim for asylum the person will be eligible to receive support under section 95 or 98 of the 1999 Act
people who have withdrawn their asylum claim but are taking reasonable steps to leave the UK or are temporarily unable to take those steps because of a physical impediment or some other medical reason
people who were refused asylum and exhausted their appeal rights before they reached 18 years of age and who are not eligible to receive support under the Children Act 1989 or equivalent legislation in Scotland, Wales and Northern Ireland

Limited period: definition

Accommodation support is provided for a limited period only, whilst the supported person makes arrangements either to leave the UK or to move to alternative accommodation. This period is expected to be no longer than three months, unless there are exceptional circumstances to justify continuing it, for example:

European Convention on Human Rights – Article 3 cases
public protection issues
the person is compliant with the returns process and is likely to be returned within a reasonable timescale

Right to Rent

People who have been granted immigration bail by the Tribunal subject to a residence condition and/or electronic monitoring condition are exempt from Right to Rent requirements and Atlas must be updated to reflect permission to rent. These people therefore have the option to secure accommodation at their own expense.

Provision of accommodation

Where a person applies for bail to the Tribunal and the Home Office considers that a residence condition is necessary were bail to be granted, the decision maker must note this in the bail summary (BAIL 505), along with information as to the type of accommodation required and the reasons why this is necessary.

FNOs granted bail whilst still under prison licence will need to have their proposed bail address approved by HMPPS (or devolved equivalents in Scotland and Northern Ireland). The agreed timeframe for HMPPS to consider an address is approximately 9 weeks. The police and other related partners may also have an interest in approving addresses for those who are not under licence.

Types of bail accommodation

There are 3 different levels of bail accommodation as follows:

level 1 – initial accommodation – high, multiple-occupancy accommodation, this:
- accommodates females as well as single persons of either gender and lone parents
- contains shared accommodation spaces used by families and individuals
- is located in high-density urban residential areas
- is unlikely to be suitable for FNOs who meet the exceptional criteria for accommodation provision
level 2 – standard dispersal accommodation, mostly high multiple-occupancy accommodation, individual accommodation but often with shared common spaces, lone adult males do not share accommodation with families or lone females
level 3 – complex bail dispersal accommodation, increased liaison with local authorities in sourcing appropriate accommodation, accommodation provider’s staff have specialist training and increased risk awareness, the authority can request specific location or specify how far the service user should be from local amenities, schools and so on, lone adult males do not share accommodation with families or lone females

FNOs receiving support because they meet the harm criteria will require Level 3 accommodation (Complex Bail Dispersal Accommodation). For vulnerable persons who are not FNOs, the suitable accommodation level will vary according to the individual’s needs.

Paragraph 3(8) of Schedule 10 provides that the commencement of a grant of bail may be specified to be conditional on arrangements specified in the grant of bail notice being in place to ensure that the person is able to comply with the bail conditions. The authority granting bail (First-tier Tribunal or Secretary of State) may use the provision to postpone the start of a grant of immigration bail until appropriate accommodation is available, if it is anticipated that there will be a delay.

Requests for accommodation

Individuals who are SIAC cases or foreign national offenders are not required to make a separate request for accommodation under paragraph 9 of Schedule 10. They should set out their needs in the bail application form, B1 or BAIL 401 as appropriate, and these will be assessed as part of the bail consideration process. All other individuals who are not asylum seekers or failed asylum seekers will need to set out the reasons why they consider that accommodation should be provided under paragraph 9 of Schedule 10 on form BAIL 409, in addition to their application for bail. This applies to those in immigration detention and those on immigration bail in the community. The form is included in the immigration bail pack given to detained persons on induction to detention and is also available on GOV.UK for all who need to use it. The completed BAIL 409 must be sent to the address shown on the form.

Generally, decisions on BAIL 409 applications from non-detained people should be made within 5 working days, but decision makers must give careful consideration to any additional factors that call for the case to be given higher priority and make the decision more quickly.

If any of the following circumstances apply, the decision maker must make reasonable efforts to decide the application within 2 working days (the list is not exhaustive):

people who are street homeless
families with children under the age of 18
people with disabilities (physical and/or mental)
elderly people
pregnant women
people who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence
potential victims of trafficking

Where a person requests bail accommodation but the decision maker considers that they do not meet the criteria for accommodation under paragraph 9 of Schedule 10, the request must be rejected using the appropriate response in the Refusal to Provide Accommodation form (BAIL 203). This should be done regardless of whether the person has been granted bail in principle.

Asylum seekers and failed asylum seekers who are detained under immigration powers and who are not SIAC cases or foreign national offenders may be considered for accommodation provided under section 98, 95 or section 4(2) of the Immigration and Asylum Act 1999 and should contact Migration Help on 0808 8000 631 for advice and assistance on how to make an application. Any agreement to provide accommodation under the powers will be subject to the person subsequently being granted bail. Accommodation will normally be provided to asylum seekers under section 98 of the 1999 Act unless there are reasons why they are unsuitable for this form of support.

Travel expenses

If there are exceptional circumstances for doing so, the Secretary of State may make a payment to a person on immigration bail to cover the person’s cost of travel to comply with a bail condition. An example of exceptional circumstances that may justify exercising the power to pay travel expenses is where the individual is subject to a reporting condition but the Secretary of State is unwilling to vary that condition to move it to a closer location to where the person is living and they are unable to afford the additional expense.

See Reporting and Offender Management for full details of the travel expenses process.

Question 14

Automatic referral for consideration of immigration bail

Accepted Answer

This page tells you about the legal obligation to refer detained persons to the First- tier Tribunal automatically, to be considered for immigration bail.

Paragraph 11 of Schedule 10 imposes a duty on the Secretary of State to arrange a referral to the First-tier Tribunal for a decision on whether to grant immigration bail to a person detained under any of the following:

paragraph 16(1), (1A) or 2 of Schedule 2 to the Immigration Act 1971
section 62 of the Nationality, Immigration and Asylum Act 2002

The Secretary of State must make the referral to the Tribunal four months after the beginning of the person’s detention (unless the Tribunal has considered a bail application in respect of the person in the interim period) and every 4 months thereafter.

If a person has submitted a bail application himself or herself in the interim period, the four-month period for automatic referral is calculated from the date the Tribunal last considered whether to grant immigration bail to the person.

A reference made by the Secretary of State to the Tribunal, automatically, for consideration of immigration bail is to be treated as a bail application to the Tribunal. If a person withdraws such an application, the four-month period for the next automatic referral is calculated from the date the application is withdrawn.

If a person makes an application for immigration bail to the First-tier Tribunal but the Tribunal is prevented from granting bail because of the Secretary of State has refused consent, that particular consideration of bail by the Tribunal is disregarded in calculating the four-month period for automatic referral.

When the duty does not apply

The duty to arrange consideration of bail before the Tribunal does not apply to those detained pending deportation under paragraph 2(1), (2) or (3) of Schedule 3 to 1971 Act or section 36(1) of the UK Borders Act 2007.

It also does not apply if:

section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in the interests of national security) applied to the person
the person has given – and has not withdrawn – written notice that he or she does not wish for his or her case to be referred to the Tribunal for consideration for immigration bail in line with the duty

Relevant date for referral

A referral must be made where 4 calendar months have elapsed since the most recent of the following events, the:

start date of the person’s current period in immigration detention
First-tier Tribunal last considered whether to grant the person bail
person withdrew an application for bail made on their behalf by the Home Office
person withdrew notice that they did not wish for the Home Office to refer them to the Tribunal for bail consideration

Automatic referral process

When a detained case is allocated, the decision maker must update Atlas. Following on from a Case Progression Panel’s decision to maintain detention after 3 months, the person will be issued with an automatic bail referral opt out or opt in form with information on the process (BAIL 501). This will be monitored after 5 days and the appropriate action taken in view of the person’s response.

Opt in

If the person agrees to opt in to the automatic referral process they will be asked to complete the Tribunal bail application form (B1) but not to sign the form. Forms B1 and BAIL 502 (Automatic Bail Referral Covering Letter) will be sent to the ALAR Bail Team who will forward them to the hearing centre and the case will be dealt with under the standard application process.

If the person signs the B1 Tribunal bail application form, the Tribunal may take this as an actual application for bail by the person and may not treat it as a referral from the Home Office. In such a case, the BAIL 502 should not be sent; instead the signed B1 should be sent to the ALAR Bail Team who will forward to the Tribunal as a normal application for bail.

Opt out

If the person wishes to withdraw from the automatic referral process, they should complete the BAIL 501 form accordingly and return this to the decision maker. The decision maker must link the BAIL 501 to the file and update Atlas to reflect the opt- out. If the person changes their mind, they can opt back into the process using the BAIL 501 form.

No response

If the person refuses to cooperate with any part of the process and no B1 or BAIL 501 form is received within 5 days of their being notified, the decision maker must update Atlas and send an Automatic Referral Covering Letter – no response (BAIL 503) to the Tribunal requesting a hearing and send the documentation to the ALAR Bail Admin Team. The ALAR Bail Team will send the BAIL 503 to the hearing centre

and the case will be dealt with under the standard application process but without input from the person.

Auto-referral and accommodation

The person will need to detail on the application where they plan to live or if they have no fixed accommodation. If they are a failed asylum seeker or have a current asylum claim and wish to apply for support under section 4(2) or section 95 of the Immigration and Asylum Act 1999, they will need to do this themselves.

If the Secretary of State is proposing a residence condition (for example, to avoid a breach of the person’s ECHR Article 3 rights), the decision-making team will need to provide this information on the referral. If the individual will be unable to support themselves, the decision-making team will need to arrange the accommodation.

See Meeting bail conditions: Secretary of State Support for further information.

Question 15

Non-compliance with immigration bail: administrative penalties

Accepted Answer

This page tells you about the administrative penalties that may be applied if a person does not comply with one or more conditions of their grant of immigration bail.

Question 16

Breach of a bail condition: Secretary of State

Accepted Answer

A person may breach one or more conditions of bail. This could, for example, be by working where this is prohibited or by failing to attend a reporting event at the time and date specified. Reporting centres are only responsible for managing those bail conditions in relation to reporting.

Where there is no financial condition and the Secretary of State intends to take action in response to the breach, by varying bail conditions, detaining, arresting for the criminal offence (see Non-compliance with immigration bail: criminal penalties), the individual must be notified in writing of the alleged breach using form BAIL 204.

The BAIL 204 gives the individual the opportunity to make representations against whether a breach occurred or to provide a reasonable excuse for the breach. The individual has 10 working days to respond. Any representations a person makes about a breach of bail conditions will not affect the person’s case progression, including detention and removal – the entire breach process runs parallel to case progression.

The BAIL 204 notice must also be served if the breach is likely to result in the refusal of leave under the Immigration Rules or if the current bail conditions prohibit work but the individual submits evidence of employment as part of their application for leave.

For information on breach of a bail condition and recovering a payment under a financial condition, see Recovery of payment under financial condition.

Decision makers must record breaches of bail on Atlas or the port/case file. On the breaches screen, under Restriction Breach tab, you must select the relevant breach from the drop-down menu. Date Breached should reflect the date the breach occurred. If the bailed person or a Financial Condition Supporter (where there is one) provides information and the decision maker considers that a breach did not actually occur, or that there were mitigating circumstances that negate taking any action, then the decision maker must update the Date Resolved field.

If the individual does not provide any information in response to the BAIL 204 notice, or the decision maker concludes that breach action is necessary having considered the information provided, the decision maker may:

vary the conditions of the person’s immigration bail
arrange administrative arrest for breach of immigration bail, if appropriate

Recovery of payment under financial condition

If a person fails to comply with a condition of bail to which a financial condition is attached, the relevant sum specified under the financial condition will become payable by the bailed person and/or the Financial Condition Supporter.

Any sum specified in the financial condition does not become payable unless the Secretary of State gives the person liable to make the payment an opportunity to provide reasons for not being required to pay the sum of money.

Where the person is granted bail by the Secretary of State, or where the Tribunal has directed that the Secretary of State has power to vary conditions of bail, the decision maker must serve a BAIL 208 on any person who is liable for the payment (either the bailed person or any Financial Condition Supporter) informing the recipients of the alleged breach of condition or conditions so that representations may be made in writing to the Home Office. The person liable to make the payment has 28 days to submit representations against payment and the Home Office must then respond within 10 working days of the date of receipt.

If the Home Office accepts the representations made against payment liability, the individual and the Financial Condition Supporter will be notified in writing that no further action is being taken at this time.

If the Home Office does not accept the representations made against payment liability or no representation is received, then financial recovery action will begin.

Initiating financial recovery action

In any case where the decision maker decides to seek recovery of payment liability under a financial condition, the decision maker must:

vary one or more conditions of the person’s continuing immigration bail
send any Financial Condition Supporter a new BAIL.301 to sign and return
issue a new BAIL 201 to the bailed person

This is necessary to ensure that the parties are aware that:

the bailed person remains subject to bail conditions even though a breach process is ongoing
any further breach or breaches may result in new penalties

If no signed BAIL.301 is received from the Financial Condition Supporter within 14 calendar days, you must consider that the Financial Condition Supporter no longer supports the bailed person in respect of their ongoing bail conditions. In light of this, consider whether bail needs to be varied or, where applicable in the individual circumstances direct the detention of the person under a provision mentioned in Eligibility for immigration bail.

The Financial Condition Supporter remains liable for the period of bail related to the breach, and Financial recovery action, below, must be taken even where a new BAIL.301 is not received.

To initiate financial recovery action, the decision maker must complete BAIL 307 and refer it to the Compliance Monitoring and Workflow Team (CMWT) within Foreign National Offender Returns Command. CMWT will then update the Civil Penalty Compliance Team (CPCT) spreadsheet.

In Foreign National Offender Returns Command cases, it will not be necessary for decision makers to complete and refer the BAIL 307 as instructed above. CMWT will initiate the financial recovery action for Foreign National Offender Returns Command following a suspected breach.

Once CMWT updates the CPCT spreadsheet, CPCT will issue form BAIL 302 (Penalty Notice) to the individual and/or Financial Condition Supporter. The Financial Condition Supporter is given 10 working days to make the payment in accordance with the information provided in the BAIL 201 (notification of grant/variation of immigration bail), the BAIL 301 (Financial Condition Supporter agreement), or the BAIL 305 (payment information) forms. Where no payment is received within the appropriate timescale, then the payment liability may be recovered.

The payment recovery is then managed by Home Office Shared Services within a 60-day three-letter process. If payment is still not received, the debt is then transferred to the Home Office Debt Strategy Team where it can be placed with debt recovery agents via the Debt Management Services contract. Enforcement action may be taken if no payment is received.

In England and Wales, a payment liability under a financial condition is recoverable as if it were payable under an order of the county court in England and Wales.

In Scotland, a payment liability under a financial condition may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court or any sheriffdom in Scotland.

In Northern Ireland, a payment liability under a financial condition is recoverable as if it were payable under an order of a county court in Northern Ireland.

Atlas must be updated once the payment is recovered.

Breach of EM immigration bail conditions

Any breach of EM related immigration bail conditions will be notified to the Home Office by the EM Supplier.

Following a breach of EM conditions, it will be necessary to seek explanation for the breach from the person/the person’s representative using form BAIL 204. The timings outlined in EM and linked Supplementary Conditions: review will apply.

If the person is on a non-fitted EM device, and due to the breach may be considered for a variation of bail onto a fitted EM device a Bail 211 should be provided to seek representations regarding a variation of device.

Where the person is an FNO consideration of any response will be made by the EM Hub, for all other individuals the consideration will be made by the responsible case work unit.

Where the explanation submitted is not considered sufficient to discount the breach (or where no explanation is submitted) the following action may be taken:

Offender Manager Intervention and potential Licence Recall
variation of bail
casework prioritisation
Financial Condition Supporter
first-tier tribunal
consider detention for removal
administrative arrest
prosecution

The appropriate action will depend on the nature and frequency of breach, the level of harm posed by the person and any previous history of non-compliance.

Prosecution is more likely to occur where the breach relates to refusal to comply with induction onto EM, deliberate attempts to remove or damage a device, to tamper with the device so that it fails to operate correctly. Any prosecution will be undertaken by the Home Office under Section 24(1) of the Immigration Act 1971.

Official – sensitive: start of section

The information in this section has been removed as it is restricted for internal Home Office use only.

Official – sensitive: end of section

If the explanation provided is considered an acceptable justification of the breach committed, then the person should be notified using the mitigation response template.

BAIL 216 EM Breach Mitigation Response Letter (Warning Letter).

BAIL 217 EM Breach Mitigation Response Letter (Action Required).

Arrest by immigration officer or constable

Administrative arrest

The power of an immigration officer or a constable to arrest a person on immigration bail, without warrant, is in paragraph 10 of Schedule 10 to the Immigration Act 2016.

This provides for an immigration officer or a constable to arrest a person on immigration bail if the immigration officer or constable has reasonable grounds for:

believing that the person is likely to fail to comply with a bail condition
suspecting that the person is failing, or has failed, to comply with a bail condition

Search and arrest with warrant

If an appropriate judicial officer is satisfied that there are reasonable grounds for believing that a person liable to be arrested for breach of immigration bail is to be found on any premises, the judicial officer may issue a warrant. The warrant would be one authorising any immigration officer or constable to enter, by reasonable force if necessary, the premises named in the warrant in order to search for and arrest the person.

For this purpose, an appropriate judicial officer means, in relation to:

England and Wales, a justice of peace
Scotland, the sheriff or a justice of peace
Northern Ireland, a lay magistrate

The safeguarding and execution of warrant provisions set out in sections 28J and 28K of the Immigration Act 1971 apply also to a warrant under Schedule 10.

For this purpose, premises is defined as follows, in:

England and Wales, it has the same meaning as in the Police and Criminal Evidence Act 1984
Scotland, it has the same meaning as in section 412 of the Proceeds of Crime Act 2002
Northern Ireland, it has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989

Action following arrest

A person arrested under paragraph 10 for breach of immigration bail must, as soon as is practicable after arrest, be brought before the relevant authority, that is:

Secretary of State, if the grant of immigration bail was by the Secretary of State or the Tribunal has directed that the power to vary the person’s immigration bail conditions is exercisable by the Secretary of State
First-tier Tribunal in all other cases

Until such time as the person is brought before the relevant authority, the person may be detained under the authority of the Secretary of State.

Where the arrested person had been granted bail by the First-tier Tribunal, the decision maker must also follow the process for notifying the Tribunal of the suspected breach. For further information, see Breach of a bail condition – Tribunal.

Once the person is brought before the relevant authority, the relevant authority will decide whether the arrested person has broken or is likely to break any of the immigration bail conditions. If the answer is yes, the relevant authority must do one of the following:

direct the detention of the person under a provision mentioned in Eligibility for immigration bail under which the person is liable to be detained
grant the person immigration bail subject to the same or different conditions, which must comply with the requirements set out in Conditions of immigration

However, if the relevant authority decides that the arrested person has not broken, and is not likely to break any of the immigration bail conditions, the relevant authority must grant the person immigration bail subject to the same conditions that applied prior to the person’s arrest. A grant of bail in this situation must comply with the requirements set out in Conditions of immigration bail and it does not prevent a subsequent exercise of the power to vary the conditions of the immigration bail.

Question 17

Non-compliance with immigration bail: criminal penalties

Accepted Answer

This page tells you about the criminal penalties for not complying with one or more conditions of a grant of immigration bail.

Under section 24(1)(h) of the Immigration Act 1971, a person on immigration bail, within the meaning of Schedule 10 to the Immigration Act 2016, who breaches a bail condition within the meaning of that Schedule, without reasonable excuse, commits a criminal offence. Such a person is liable to prosecution, and if convicted, may be subject to a fine and/or up to 6 months’ imprisonment.

Question 18

Asylum claimants: additional information

Accepted Answer

This page tells you about imposing conditions on asylum claimants.

Asylum claims from persons with leave

An illegal entrant (including an overstayer and someone determined to have entered using deception) who is discovered may claim asylum before a decision is taken to serve a liability to removal notice (for example a Notice of Liability to Remove). Such a person cannot be removed before their asylum claim is decided or decided and certified.

See Enforced removals: notice periods.

For Border Force cases, officers must use the IS81. Border Force officers must follow the clandestine guidance in immigration guidance for Border Force.

The person should be issued with a notification of grant or variation of bail form (BAIL 201) with at least one condition set unless detention is appropriate and considered necessary. See: Detention general guidance.

The decision maker must record the action taken on Atlas and the person’s case/port file.

For further information see:

Conditions of immigration bail
Immigration Bail: Secretary of State

Asylum claims from persons with leave

An individual who claims asylum in the United Kingdom while they have valid leave to enter or remain in another category cannot be placed on immigration bail. They may be subject to conditions under section 71 of the Nationality, Immigration and Asylum Act 2002 instead. Section 71 allows such a person to be made subject to such conditions as may be placed on a grant of immigration bail. Such persons should be served with a Notice of Restriction to a person who has made an in- country in-time claim for asylum (IS.248).

A person who breaches conditions under section 71 will become liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971 and may then be detained under that provision or granted bail under Schedule 10.

Atlas must be updated to reflect the conditions set.

Question 19

Reconsider a decision

Accepted Answer

This page tells you about when a person who is currently on bail previously had leave which was cancelled by an immigration decision, and what to do when that decision has been withdrawn and is being reconsidered.

A person may have leave extended by section 3C of the Immigration Act 1971 while an in-time application is being considered. At the point their application is decided, subject to any appeal rights or right to administrative review, the statutory extension of their leave will cease. They will therefore be a person who is liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971.

There are occasions where we withdraw the decision that brought leave extended by section 3C to an end. This may be due to representations being made or because we agree to reconsider the decision in settling a judicial review. When we withdraw a decision, we will usually have to remake it. Where the person previously benefited from section 3C, section 3C leave will be resurrected at the point we withdraw the decision. That means if the person was on bail you should always bring bail to an end. See Ending immigration bail for further guidance.

For further information on 3C leave, see Leave extended by section 3C (and leave extended by Section 3D in transitional cases).

Question 20

Ending immigration bail

Accepted Answer

This page tells you when immigration bail will end.

When bail is granted, the person remains on bail until it automatically ends, for example, where the person is granted leave to enter or remain in the UK, is detained under immigration powers, or departs the UK. Leave includes those granted restricted leave.

Grant letters contain an optional line with wording to end bail so no further notification needs to be provided:

‘Once you have been issued with a Biometric Residence Permit, as specified above, your immigration bail will end automatically, in accordance with the Immigration (Biometric Registration) Regulations 2008 as amended by the Immigration (Biometric Registration) (Amendment) Regulations 2012.’

Secretary of State granted bail, or bail managed by the Secretary of State should be recorded on Atlas in accordance with the operating procedure in your area.

The decision maker must also inform the First-tier Tribunal, if the Tribunal was managing the bail and was not involved in it coming to an end.

See Duration of Immigration Bail for when bail ends.

Question 21

Transitional arrangements

Accepted Answer

This page tells you about the transitional arrangements for people on other forms of detention/restrictions prior to the commencement of immigration bail.

Under paragraph 13 of Schedule 10, regulations for commencing the Schedule treat people who had already been notified of their liability to detention and given restrictions as an alternative to detention (for example temporary admission, temporary release, release on restrictions and bail) as having been granted immigration bail in such circumstances and subject to the same conditions as were previously specified to the person.

This applies to the following:

a person on temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971
a person released from detention under that paragraph
a person liable to detention under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 but released by virtue of a direction of the Secretary
a person liable to be detained under paragraph 2(2) or (3) of that Schedule but was not so detained
a person released from detention under section 36(3) of the UK Borders Act 2007
a person released on bail from detention under any provision of the Immigration Acts

There is no requirement to contact these individuals separately to notify them of their transition onto immigration bail. However, when the person is next contacted they should be informed that they are now on immigration bail.

Below is the recommended wording for explaining immigration bail to persons who have transitioned from their current restriction regime:

‘Following a change in the law, your status in the UK is now described as ‘immigration bail’. Your presence in the UK was previously subject to restrictions or conditions under the Immigration Act 1971. The Immigration Act 2016 has replaced these parts of the Immigration Act 1971. The restrictions on your presence in the UK remain the same.’

A variation of the pre-existing conditions will need to be updated on Atlas and a BAIL 201 form issued to the person.

Question 22

Immigration bail notices

Accepted Answer

Current bail notices/forms are listed below:

Forms used by the First-tier Tribunal

B1 - Immigration bail application
B2 - Request to vary immigration bail conditions
B3 - Variation of bail conditions and transfer request

Question 23

Forms used by the Secretary of State

Accepted Answer

BAIL 201 Notification of grant/variation of immigration bail
BAIL 202 (SCI) Self check-in notice (to carrier)
BAIL 203 Refusal of accommodation
BAIL 204 Notification of breach of immigration bail condition
BAIL 205 Notice to police of immigration bail reporting condition/variation of reporting condition/end of reporting condition
BAIL 206 Notification to contractor of new (or variation to existing) electronic monitoring condition
BAIL 208 Information request following breach of bail condition
BAIL 209 Immigration bail form where a decision is being withdrawn and is being reconsidered
BAIL 210 Invitation of representations against the use of Electronic Monitoring (RF) BAIL 211 Invitation of representations against the use of Electronic Monitoring (GPS)
BAIL 212 Invitation of representations against the transfer from RF to GPS
BAIL 213 EM information letter - detained
BAIL 214 EM information letter
BAIL 215 EM representations response letter
BAIL 216 EM breach mitigation response letter (warning letter)
BAIL 217 EM breach mitigation response letter (action required)
BAIL 301 Financial Condition Supporter’s agreement to immigration bail financial condition
BAIL 302 Requirement to pay financial condition
BAIL 303 Breach of bail condition summary to First-tier Tribunal
BAIL 304 Bail variation consent letter
BAIL 305 Information for a Financial Condition Supporter
BAIL 306 Financial condition – standing as a Financial Condition Supporter BAIL 307 Financial penalty recovery following breach of bail conditions BAIL 401 Application for Secretary of State immigration bail
BAIL 402 Refusal of Secretary of State bail BAIL 403 Immigration bail information BAIL 404 Bail information cover letter
BAIL 405 Rejection of invalid Secretary of State bail application
BAIL 406 Notification of refusal to vary bail conditions
BAIL 407 Referral of case suitable for Secretary of State bail
BAIL 408 Secretary of State bail – grant consideration
BAIL 409 Application for immigration bail accommodation (exceptional circumstances – Article 3 ECHR)
BAIL 501 Automatic bail referral opt-out/opt in form
BAIL 502 Automatic bail referral
BAIL 503 Automatic bail referral (with no bail application)
BAIL 505 Bail summary
BAIL 506 Conditional bail update form Notice of Liability to Remove

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Introduction

Transitional provisions

Eligibility for immigration bail

Power to grant immigration bail

Duration of immigration bail

Conditions of immigration bail

Immigration bail conditions: general

Immigration bail conditions: appearance before Secretary of State or Tribunal

Self check-in

Immigration bail conditions: restrictions on work, occupation or studies

Work or occupation

Study

Children

Asylum seekers

Immigration offenders

Deportation cases

Study condition: quick guide on usage

Immigration bail conditions: residence

Residence

Residence condition: referring cases to the Immigration Enforcement (IE) Evictions Team

Immigration bail conditions: reporting

Reporting centres

Reporting to police stations

Telephone reporting

Digital reporting

Consideration of digital reporting

Technology requirements

Contact detail verification

Frequency of digital reporting

Digital reporting process

Implementation of digital reporting

Identification of digital reporting condition

Recipient options: not for me

Changes to contact details

Digital reporting: location recording

Use of data

Ceasing the digital reporting condition

Non-compliance with digital reporting

Immigration bail conditions: electronic monitoring

EM devices

Issuing devices

Electronic monitoring (EM) duty

Use of EM

Vulnerability considerations

EM and linked Supplementary Conditions: review

Electronic monitoring: individuals subject to the duty

Practical reasons

Electronic monitoring: individuals not subject to the duty

Representations

Considering representations

Levels of authority for use of EM

Where a Justice Department imposes EM conditions

Electronic monitoring: implementation

EM address considered unsuitable

Accommodation where a person has been referred into the National Referral Mechanism

No fixed abode

Failed EM inductions

Electronic monitoring: additional requirements

EM and linked supplementary conditions: review

Compliance with immigration bail

The risk of re-offending

Vulnerabilities

Use of automated business rules

Risk of harm types: offences

Length of time on device type

Use of data

Breach of immigration bail conditions

Person absconds

External Agency Request (EAR requests)

Article 8 representations / further submissions

Allegations of EM breaches or intelligence of immigration bail condition breaches received

Subject Access Requests (SAR) or legal challenge

Immigration bail conditions: other

Immigration bail supplementary conditions: curfews, inclusion or exclusion zones