The Home Office’s Gambit: two tactics used against asylum seekers applying for immigration bail
26 Sep 2022
Imogen Mellor explores two increasingly-used tactics of the Home Office: their offer of immigration bail conditional on electronic monitoring and releasing individuals shortly before their bail hearing. Imogen offers practical advice when faced with these situations.
On 14 April 2022, the government announced the new policy of relocating asylum seekers who are deemed to have arrived illegally in the UK to Rwanda where they would have their asylum claims processed. If granted international protection, the refugees would be expected to start a new life in Rwanda, and not the UK. The government stated that the purpose of this policy is to break “the barbaric trade in human misery conducted by the people smugglers in the Channel.”
The policy has met a huge amount of criticism, and its legality is currently being challenged in the High Court.
Whilst the Rwanda policy is still in the process of being challenged, the Home Office have been serving some asylum seekers with a “Notice of Intent” to remove to Rwanda. This “Notice of Intent” is what it says on the tin: there is an intention to remove but at this point, it is nothing more than that. This contrasts with “Removal Directions”, which set out the specifics of an individual’s removal, including, sometimes, the date, time and flight details of deportation.
Against this backdrop, asylum seekers in immigration detention centres who have been served with a Notice of Intent are also often served with a letter or letters offering them Secretary of State immigration bail on the condition that they are electronically monitored.
Electronic monitoring allows the Secretary of State to monitor the individuals’ whereabouts through GPS tracking, and facilitates the imposition of conditions such as curfews and where they can go. If the individual is found to have breached these conditions, they are liable to arrest and re-detention.
These tags can be incredibly burdensome on the individual not only in terms of the restrictions that monitoring imposes on their movements, but also in terms of the Home Office retaining this data. Further, it is burdensome in terms of other practical issues such as if the tag runs out of battery (which frequently happens) which in turn could result in the individual being found to be in breach of their bail conditions. David Neal, the Independent Chief Inspector of Borders and Immigration in his report dated March – April 2022, stated that “in the last 6 months 4,967 (69.7%) [of bail breaches] had been battery breaches… which occurred when a device runs out of charge for any period. Inspectors were told that in an unspecified number of those cases, the device had been placed back on charge prior to a breach notification being received. Monthly breach levels have more than doubled since September 2021 as the number of devices in use has increased.” He concluded that tagging “cannot yet demonstrate it is achieving” its aims. As Janet Farrell, a partner from Bhatt Murphy noted in an article for the Guardian, charities have expressed their concerns about these issues, and the lack of safeguards in place. For many, the imposition of electronic tagging feels like a form of punishment, merely for seeking asylum.
Provisions at Schedule 10 Section (2) of the Immigration Act 2016, introduced from 31st August 2021, provide for mandatory electronic monitoring of any person released from detention whose deportation is pending, unless monitoring would breach their human rights or would be impractical. However, recently electronic monitoring has been extended to asylum seekers who arrived via illegal and dangerous routes under the Home Office’s “Electronic Monitoring (EM) expansion pilot” introduced from 15 June 2022.
It is becoming increasingly common for the Home Office to offer asylum seekers bail on the condition that they are electronically tagged. Individuals are then invited to make submissions as to why they should not be subject to electronic monitoring, including whether it was impractical or it would be a breach of their human rights. They are often given a few days to make those submissions. However, this invitation for submissions has no legal basis in cases concerning a Notice of Intent to deport to Rwanda.
Rather, the “test” that a person should be electronically monitored unless it contravenes their human rights or is impractical applies only where a person is being detained pending deportation as per schedule 10 of the Immigration Act as noted above. The pilot scheme which extended the use of electronic monitoring to asylum seekers merely mentions that they can be tagged where it is “justified in the circumstances”. The Home Office therefore appear to be conflating the pilot guidance for asylum seekers with Schedule 10 cases.
Where asylum seekers have refused the offer of bail on the condition of being electronically monitored and have then applied for Tribunal bail, the Home Office has at times decided not to oppose bail. Further, they have granted Secretary of State bail shortly before the hearing. Therefore, practitioners should be alive to the fact that the Home Office may retract their initial position shortly before the hearing. Where Secretary of State bail is granted, the individual’s bail conditions are managed by the Home Office, rather than the Tribunal. The Home Office granting bail at the last minute suggests that they know that imposing electronic monitoring is baseless, but still attempted to push the individual to accept being monitored out of court in the earlier stages of their detention.
Further, the tribunal is often not informed that the Secretary of State has granted bail, and the Presenting Officer does not always attend the hearing to inform the Judge.
Therefore, there are two concerning Home Office tactics. The first being the Home Office offering asylum seekers bail on condition that they are electronically monitored, citing a legal test which is simply not applicable and requiring often very vulnerable individuals to make submissions accordingly if they contest the use of electronic monitoring. Faced with this offer, individuals feel pushed to accept electronic monitoring. Secondly, the Home Office granting bail at the door of the tribunal ensures that they are the ultimate arbiters of the bail management. Both tactics suggest that the Home Office is aware that bail should be granted in these cases without tagging and indeed would be by the tribunal if the case went before a Judge.
Practitioners are encouraged to push back against the Home Office where offer letters are made with electronic monitoring conditions. Where Secretary of State bail is granted at the last minute, representations should still be made by practitioners to the tribunal to inform them of this and also draw the tribunal’s attention to this increasing practice. Drawing attention to this, it is hoped, will encourage members of the judiciary and stakeholders to call out the Home Office in these circumstances, in turn potentially reducing their use.
Finally, practitioners may wish to seek further advice on whether there are grounds for an unlawful detention claim in cases where the Home Office employ such tactics.
I would like to thank Bail for Immigration Detainees for their incredible work and for instructing me.
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