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The Liberty Deficit: Long-Term Detention & Bail Decision-Making a Study of Immigration Bail Hearings in the First Tier Tribunal

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The Liberty Deficit: Long-Term Detention & Bail Decision-Making a Study of Immigration Bail Hearings in the First Tier Tribunal REPORT The liberty deficit: long-term detention & bail decision-making A study of immigration bail hearings in the First Tier Tribunal NOVEMBER 2012 Design: www.harveygraphic.co.uk Print: Marstan Press Copyright: The authors welcome the reproduction of this report provided that no charge is made for the use of the material and the source of information is acknowledged. BID registered charity no: 1077187 Exempted by the OISC: N200100147 The liberty deficit: long-term detention & bail decision-making A study of immigration bail hearings in the First Tier Tribunal Bail for Immigration Detainees is a small national charity established in 1999 to improve access to bail for those held under Immigration powers. BID provides legal advice, information, training, and legal representation in relation to immigration bail across the UK detention estate and in prisons. We do this through telephone advice lines, a Theself-help book forliberty detainees called ‘How todeficit: Get out of Detention’ available in five languages, bail workshops in a number of detention centres, and through the preparation and presentation of bail applications in court. BID also engages in policy, research, and parliamentarylong-term work, and in strategic litigation. detention In the year to August 2012 we assisted 2510 detainees to make their own bail applications and we prepared 246 cases for representation& bail in the Tribunal. decision-making BID often lodges more bail applications each months at the Tribunal than even the largest provider of publicly-funded immigration legal advice in removal centres1. Many of our clients are referred on to public law firms for unlawful detentionA challenges.study of immigration bail hearings Over thein years the the First courts have Tier granted Tribuna BID permission to intervene in a number of cases raising important issues on immigration detention, including: Mustafa Abdi v United Kingdom (European Court of Human Rights, Application 2770/08, on-going)2; Razai & Others v SSHD [2010] EWHC 3151 (Admin)3; SK (Zimbabwe) v SSHD UKSC 2009/00224; Walumba Lumba (Congo) and Kadian Delroy Mighty (Jamaica) [2011] UKSC 125, and BA and others [2011] EWHC 1446 (QB). For more information on BID [email protected] www.biduk.org @BIDdetention CONTENTS 1 Bail for Immigration Detainees, (2012), ‘Exclusive contractors & bail hearings: analysis of daily court listings between November 11th and December 20th 2011’. 2 The sequel to the Court of Appeal’s decision in R(A) v SSHD [2007] EWCA Civ 804 3 In which the court considered evidence indicating systemic difficulties with the Secretary of State’s policy of providing accommodation for immigration detainees who are considered to be high risk. 4 Where the court considered whether a breach of public law duty involves non-adherence to a published policy (and delegated legislation) requiring periodic detention reviews. 5 Established a breach of a public law duty involving non-adherence to a published policy identifying substantive detention criteria. CONTENTS Acknowledgements 1 List of tables 2 Glossary 2 HOPE AND DESPAIR 3 1 INTRODUCTION 5 1.1 THE LOTTERY OF BAIL APPLICATIONS 6 1.2 WHY BID CARRIED OUT THIS RESEARCH INTO BAIL DECISION MAKING 6 1.3 IMMIGRATION DETENTION IN THE UK: CHANGES SINCE OUR LAST REPORT 9 1.4 RESEARCH METHOD 10 Unrepresented cases in this study 11 Represented cases in this study 11 Observations of bail hearings 12 Consent 12 Hearing centres 13 1.5 OTHER ISSUES 13 1.6 OUTLINE OF THIS REPORT 14 2 FAST AND FAIR? TRIBUNAL DECISION MAKING & BAIL 16 2.1 INTRODUCTION 16 2.2 ACCESSIBILITY, FAIRNESS AND EFFICIENCY: UNDERLYING OBJECTIVES OF THE TRIBUNAL SYSTEM 17 2.3 THE OVERRIDING OBJECTIVE AND THE DUTY TO COOPERATE 17 2.4 ASPECTS OF ACCESSIBILITY: THE ENABLING ROLE OF TRIBUNALS 18 2.5 WHAT LEGAL DECISION-MAKING MODELS CAN TELL US ABOUT IMMIGRATION BAIL HEARINGS 19 3 ACCESSING FAIR BAIL DECISIONS: PRACTICAL BARRIERS & SELECTIVE ARGUMENTS 21 3.1 INTRODUCTION 21 3.2 GRANTED, REFUSED, WITHDRAWN: THE REPRESENTATION PREMIUM 22 3.3 VidEO LINK BAIL HEARINGS: difficult TO paRticipatE fully IN PROCEEDINGS 23 3.4 TAKING INSTRuctiONS FROM CLIEnts BY VIDEO LINK: 10 MINUTES IS always INSUFFICIENT 25 3.5 LENGTH OF HEARINGS: REPRESENTED CASES TAKE MUCH LONGER 26 3.6 USE OF INTERPRETERS: COMPREHENSIVE INTERPRETATION SQUEEZED WHERE MORE EVIDENCE AND ARGUMENT 28 3.7 ADEQUATE OPPORTUNITIES TO SPEAK FOR COUNSEL AND APPLICANT 30 3.8 THE TREatMENT OF SURETIES 31 Developing the concept of the “continuous surety” for immigration bail 32 3.9 ARGUMENTS AGAINST RELEASE ON BAIL RUN BY PRESENTING OFFICERS 36 3.10 IS THE SECRETARY OF STATE OVERSTATING THE RISK OF ABSCONDING? 37 3.11 THE STATUTORY RESTRICTION ON THE GRANT OF BAIL RELATED TO LIKELIHOOD OF RE-OFFENDING 39 3.12 THE TRIBUNAL’S RESPONSE TO ARGUMENTS AGAINST RELEASE 42 4 THE JUSTICE GAP: EVIDENCE AND DISCLOSURE 45 4.1 INTRODUCTION 45 4.2 DISCLOSURE OF EVIDENCE 46 4.3 HOW THE TRIBUNAL APPROachES EVIDENCE AND DISCLOSURE AT HEARINGS 47 4.4 THE BURDEN OF PROOF IS NOT ENFORCED BY THE TRIBUNAL 49 4.5 Bail SUMMARIES: inaccuRatE, UNEVIDENCED, BUT NO LONGER SERVED latE 51 4.6 THE STRANGE CASE OF THE MISSING OFFENDER MANAGEMENT INFORMATION & THE NOMS1 FORM 52 4.7 HOW THE TRIBUNAL ENGAGES WITH ISSUES OF CRIMINAL RISK: THE nEED FOR DEFENSIBLE BAIL DECISIONS 55 4.8 LONG TERM DEtainEES & THE SHELF LIFE OF RISK ASSESSMEnts and OFFENDER ManagEMENT INFORMatiON 58 Reliance by the Tribunal on UKBA reports of adverse behaviour in detention 60 A wide range of levels of criminal risk 60 4.9 EVIDENCE IN RElatiON TO MEntal HEalth TREATMENT at BAIL HEARINGS 61 4.10 DECISIONS ABOUT HOW TO RELEASE ON BAIL: COMPLEX RELEASES 63 5 MOVING THINGS FORWARD: THE POWERS OF THE TRIBUNAL 65 5.1 INTRODUCTION 65 5.2 IMMIGRATION & DETENTION CASES AS A SERIES OF STEPS 65 5.3 ADMINISTRatiVE JUSTICE AND THE ARGUMENT FOR A ‘RIGHT FIRST TIME’ APPROach tO BAIL DECISION MAKING 66 5.4 a ‘WITHDRaw OR DISMISS’ cultuRE VS. USE OF DIRECTIONS TO PARTIES 67 5.5 Bail GRANTED IN PRINCIPLE PENDING RESOLUTION OF ISSUES OR DISCLOSURE OF DOCUMENTS 70 5.6 AN ‘ADJOURN AND DIREct’ cultuRE 72 5.7 RECORDS OF PROCEEDINGS & JUDGES’NOTES OF EVIDENCE 74 5.8 CONCLUSION 80 6 EASIER to APPLY again: complaining ABOUT bail DECISIONS 81 6.1 INTRODUCTION 81 6.2 WHO TO COMPLAIN TO? 82 6.3 ACTING JUDICIALLY: THE ATTITUDE OF THE TRIBUNAL TO THE PROCEEDINGS AND TO THE PARTIES 83 6.4 NO FEEDBACK, NO IMPROVEMENT 86 7 BAIL DECISIONS IN THE TRIBUNAL: FAST BUT NOT FAIR 89 7.1 BAIL AND UNLAWFUL DETENTION 89 7.2 BID’S RECOMMENDATIONS 91 Recommendations by issue 91 Barriers arising from the use of video link bail hearings 91 Interpretation 91 Sureties 92 Case management and length of listings 92 Disclosure of evidence 92 Specific types of evidence 92 Moving detention cases towards resolution 93 Other 94 Recommendations by agency 95 First Tier Tribunal (IAC) & HM Courts & Tribunals Service 95 UK Border Agency 97 NOMS 98 HM Prison Service 98 Home Office 98 Legal Services Commission 98 ANNEX A 99 Bail outcomes by hearing centre 99 ACKNOWLEDGMENTS Thanks are due to the following people. Those who knowingly or unknowingly shaped the thinking for this report or provided more direct assistance: Steve Bravery, Dan Wilsher, Ali McGinley, Victor Fiorini, Gemma Lousley, Nic Eadie, Debbie Neale, Steve Symonds, Hamish Arnott, Jed Pennington, Sue Willman, Jo Thomson, Simon Cox, Juliette Wales, Christine Oliver, Mike Spencer, Nick Gill, Rajeev Thacker, Nick Hammond, Graham Denholm, James Elliot. The following pro-bono barristers: Kezia Tobin, Emma Daykin, Catherine Meredith, Siobhan Lloyd, Antony Vaughan, Priya Solanki, John Crosfil, Saoirse Townshend, Raza Halim, Ronan Toal, Althea Radford, Iain Palmer, Alex Grigg, Paul Harris, Raphael Jesurum, Gwawr Thomas, Sarah Pinder, R Reynolds, Emma King, Rowena Moffat. The following post-graduate law students from The City Law School (2011-2012), City University: Nantia Constantinou, Charlotte Glaser, Derick Ackloo, Rizwan Gondal, Marina Bernstein George Stafford, Jiachae Xie, Martin Jones, Stanzie Bell, Gebrial Ghirmay, Sarah Dallicardillo, Sarah Laser, Sharon Hazan. Gatwick Detainee Welfare Group for permission to use extracts from their report ‘A Prison in the Mind: the mental health implications of detention in Brook House Immigration Removal Centre’, 2012. The team at BID: Celia Clarke, Pierre Makhlouf, Shoaib Khan, Elli Free, Ionel Dumitrascu, Frances Pilling, Natalie Poynter, Sille Schroder, Iqvinder Mahli, Matt Duncan, Sarah Campbell, Nick Beales, Mark Allison, and Kamal Yasin. The report was written by Adeline Trude. For background information on this research please visit the Resources page of the BID website at http://www.biduk.org/162/bid-research-reports/bid-research-reports.html The liberty deficit: long-term detention & bail decision-making 1 LIST OF TABLES Title Table 01: A brief history of bail guidance Table 02: Location of the bail hearings examined in this study Table 03: Outcomes of bail hearings in this study Table 04 : Bail outcomes by hearing centre Table 05: Length of hearings for represented and unrepresented cases Table 06: Use of interpreters Table 07: Rate of offering sureties, number of sureties offered, and rate of examination of sureties Table 08: HOPO points of argument Table 09: Additional arguments run by HOPOs in opposing release on bail Table 10: Factors considered by the Tribunal during the hearing Table 11: Typical information submitted to the Tribunal by parties in bail applications Table 12: Access by parties to offender management information Table 13: Options
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