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									       Remedies for immigration detainees (deportation cases)
                                                                                         Laura Dubinsky

Release subject to restriction order
1. When a person liable to be detained pending deportation under paragraphs 2(1) –(3)
    Schedule 3 Immigration Act 1971 is released, restrictions can be placed on the
    person’s residence, employment or occupation; and reporting to the police or to an
    immigration officer can be required 1 .


Bail
Who can seek bail
2. All immigration detainees can apply for bail, provided that at least seven days have
    passed since their arrival in the UK 2 . Earlier restrictions on bail for persons liable to
    be deported were lifted in 2003 3 . The fact that removal directions have been set is not
    a bar to applying for bail 4 .


Who can grant bail
3. Bail can be granted by a chief immigration officer; an immigration judge 5 or a police
    officer not below the rank of inspector 6 ,or the Secretary of State 7 on the person’s own
    recognizance with a condition to appear on a subsequent date given in writing 8 .




1
  Immigrat ion Act 1971 sch 3 paras 2 (5) – (6)
2
  Immigrat ion Act 1971 sch. 2 para 22 (1) and 22 (1B); fo r persons liable to deportation, see also
Immigration Act 1971 sch 3 para 2 (4A)
3
  By Immigrat ion and Asylum Act 1999 s.54
4
  Immigrat ion Act 1971 sch 2 para 34
5
  Immigrat ion Act 1971 sch 2 para 22 (1A)
6
  Immigrat ion Act 1971 sch 2 para 22 (1A)
7
  Nationality Immig ration and Asylum Act 2002 s.68(2) (b)
8
  Immigrat ion Act 1971 sch 2 para 22(1A)
     Further conditions can be imposed 9 and sureties may be taken, though sureties should
     not be required where they are not necessary to ensure compliance 10 .


Making representations to the CIO
4. Representations as to why a person should be released or bailed can be made at any
     time to a Chief Immigration Officer (‘CIO’). These should be copied to the
     immigration authority responsible for the detention (see ‘who is responsible’).


Seeking bail in the Asylum and Immigration Tribunal (‘AIT’)
5. Bail applications are lodged with the AIT by completing form B1. To download form
     B1, go to
     www.ait.gov.uk/forms_and_guidance/documents/pdf/b1_application_t o_be_released_on_bail
     .pdf



6. If the Secretary of State is contesting the bail application, the Secretary of State must
     file a ‘bail summary’ (his written statement of reasons) with the applicant not later
     than 2pm the day before the hearing, or when notice was received less than 24 hours
     previously, as soon as reasonably practicable 11 .


7. The AIT must list the hearing within three days of receiving the application 12 .


8. When preparing a bail application, the May 2003 Guidance Notes for Adjudicators on
     bail remain useful 13 .


9. When preparing a bail application, bear in mind the following:




9
  Immigrat ion Act 1971 sch 2 para 22(2)
10
   R v SSHD ex p Brezinski & Glowacka (19 July 1996 unreported); and Guidance Notes for Adjudicators
May 2003 para 2.2.2: ‘Adjudicators are reminded that sureties are only required where you cannot
otherwise be satisfied that the applicant will observe the conditions you may wish to impose.’
11
   SI 2005/ 230 r. 39 (2)
12
   Practice Direct ion 2005/1, 19.1
13
   These are on the Avid Detention Website at:
http://www.aviddetention.org.uk/Bail%20Gu idance%20Notes%20-%203rd%20Ed ition.ht m
a) Though it is for the Secretary of State to justify your client’s detention, it is almost
   always important to provide evidence in support of the bail application. Eg. If your
   client has leave to remain in the UK, provide copies of documents showing this
   unless this point is conceded explicitly in the bail summary. If your client has
   oustanding representations or appeals, provide copies of application forms and of any
   outstanding representations unless this point is conceded explicitly in the bail
   summary. If your client did not have leave to remain, but remained at an address
   known to the authorities even when appeal rights exhausted, provide evidence of this
   (eg bills, correspondence, tax payments etc). If your client was released on licence
   and complied with his conditions, seek evidence of this from the National Probation
   Service. If your client has family ties in the UK, provide evidence (marriage
   certificates, birth certificates) and try to have the family attend the hearing. If your
   client has lawful employment waiting for him if released, provide evidence (eg letter
   from employer). If your client successfully completed courses in criminal custody to
   address his offending behaviour, provide copies of certificates etc, as well as, if
   possible, any reports produced on the applicant while s/he was in prison.
b) It is almost always important to have the applicant present to give oral evidence. You
   may wish to get the bail application listed in a hearing centre near the detention centre
   or prison so that the client will be produced.
c) Home Office bail summaries frequently contain inaccuracies. It is important to take
   careful instructions on the chronology and on the allegations set out in the bail
   summary.
a) Note that you will be asked to provide in the application notice for bail, among other
   details, the address to which the person would be bailed if released and the names,
   addresses, occupations and dates of birth of any sureties and the amounts offered.
   These details must not be provided late. Your sureties should have a form of leave to
   remain in the UK and preferably no criminal record. They must bring to the hearing
   proof of their finances (usually recent bank statement) and their passport or other
   documents relating to their nationality and immigration status. If your sureties do not
   live in the same town as the address to which your client will be bailed, consider
       whether, and if so how, your sureties will be able to exercise control over the
       applicant if s/he is released.


10. The Secretary of State is making a practice in bail applications for persons facing
       deportation of asking for sureties to deposit monies with the solicitor as a condition of
       bail. It is the AIT’s guidance that Immigration Judges have no jurisdiction to req uire
       this 14 because of concerns about money laundering.


11. Bail is not a challenge to the lawfulness of detention. It is not, therefore, a
       prerequisite to seek bail from the AIT before seeking judicial review of the
       lawfulness of detention. In practice, however, it is often advisable to seek bail from
       the AIT even if challenging the lawfulness of detention in another forum.


Challenging the lawfulness of detention by judicial review, civil claims for damages
or habeas corpus
12. The lawfulness of detention can be challenged by judicial review, a civil claim for
       damages or habeas corpus.

Habeas corpus
14. Habeas corpus is only appropriate where it is asserted that there is no power to detain.
       There are procedural advantages to habeas corpus: habeas corpus writs are issued as
       of right (there is no discretion to withhold relief as there is in judicial review); habeas
       corpus applications are given high priority; there is no permission procedure and there
       is no time limit on applications 15 .




14   http://www.ait.gov.uk/practice_directions/documents/guide_note7.pdf


15
  But note that it has been held that to make an application for habeus corpus after a failed application for
judicial review on the same issue was an abuse of process R v SSHD ex p Sheikh (2000) Times 7 Dec
15. However, the Courts have cautioned against using habeas corpus 16 . Judicial review
     affords greater flexibility. See the comments of Simon Brown LJ in R v Oldham
     Justices and anothe r, ex parte Cawley [1997] QB 1:


        ‘The reality is that as judicial review has developed into an ever more flexible and
        responsive jurisdiction, the need for a parallel, blunter remedy by way of habeas
        corpus has diminished…In my judgment habeas corpus has no useful role to play
        in reviewing decisions of the nature here under challenge. I recognise, of course,
        that where it applies it enjoys precedence over all other court business, reverses
        the presumption of regularity of the decision impugned, and issues as of right. In
        practice, however, no less priority is accorded to judicial review cases involving
        the liberty of the subject; the presumption counts for little in such cases (is indeed
        effectively reversed by a defective warrant), and the court would be unlikely in its
        discretion to withhold relief if the actual decision to detain were found legally
        flawed. Importantly, moreover, in judicial review the court has wider powers of
        disposal…’



Judicial review

16. Judicial review should be used in detention cases where:




16
 R v Secretary of State for the Home Dept, ex p Muboyayi [1991] 4 All ER 72; Chebl ak [1991] 2 A ll
ER 319 at 322-323.
      a) the real challenge is to the administrative decision underlying the decision to
          detain (such as the issuing of a deportation order) 17 ;
      b) the challenge is to a refusal by an immigration judge to grant bail 18 ;
      c) the challenge is brought on the basis that the detention was not in accordance with
          Home Office policy; or
      d) the challenge does not concern the power to detain but about whether the exercise
          of the power was reasonable or proportionate 19 .


17. Where the claimant is still detained at the time that the judicial review is lodged, bail
      can be sought from the High Court. Expedited consideration of the claim for judicial
      review can be sought by lodging form N463 (application for urgent consideration) in
      addition to the standard N461 (judicial review claim form).


18. Damages for unlawful detention can be awarded in judicial review if the claimant can
      establish a private law cause of action (ie false imprisonment or breach of Article 5
      ECHR). However, there is no jurisdiction under Part 54 CPR to grant damages
      alone 20 : damages must be ancillary to other relief (eg declaration).


Civil claim for damages in the County Court or High Court
19. In the case of ID v Home Office [2005] EWCA Civ 38, the Court of Appeal robustly
      rejected arguments by the Home Office on procedural exclusivity and confirmed that
      challenges to the lawfulness of detention may be brought by way of a civil claim for
      damages or by way of judicial review.




17
   R v SS HD ex p Muboyayi [1991] 3 W LR 442
18
   Re Maybasan [1991] Imm A R 89 QBD
19
   Chebl ak [1991] 2 All ER 319 at 322-323, [1991] 1 W LR 890 at 894
'A writ of habeas corpus will issue where someone is detained without any authority or the purported
authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of
judicial review is available where the decision or action sought to be impugned is within the powers of the
person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of
relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the
decision or action, it should never have been taken.'
20
     CPR 54.3.2
20. However, note that where the case involves substantial disputes of fact and will
     require cross-examination, the appropriate course will usually be a civil claim for
     damages 21 .


The standard of revie w in challenges to the lawfulness of detention
21. In two important recent cases, El Sayed Sabaei Youssef v The Home Office [2004]
     EWHC 1884 (QB) and R (Karas) v SSHD [2006] EWHC 747 Admin, (the first a
     claim for damages in the Queen’s Bench Division, the second a judicial review) the
     High Court has held that when assessing whether administrative detention is or was
     unlawful, the Court will not apply Wednesbury review but will itself act as primary
     decision- maker and assess whether detention was reasonable and proportionate in all
     the circumstances.




21
   it has been repeatedly held that judicial review is inappropriate for cases in which there are substantial
disputes of fact eg R v Horsham DC ex p Wenman [1995] 1 W LR 680.

								
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