Bail is the temporary release of an accused person awaiting trial, sometimes on the condition that a sum of money is lodged to guarantee their appearance in court.
This article can be helpful for those who intend to apply for the Secretary of State Bail. The power to grant bail is available to the Secretary of State for the Home Department by virtue of paragraph 1 of Schedule 10 of the Immigration Act 2016.
To apply for the Secretary of State Bail, an applicant must:
be held in an immigration removal centre, a detention centre or prison
be detained on immigration matters, listed in paragraph 16(1), (1A) or (2) of Schedule 2 of the Immigration Act 1971, paragraph 2(1), (2) or (3) of Schedule 3 of the Immigration Act 1971, section 62 of the Nationality, Immigration and Asylum Act 2002, section 36(1) of the UK Borders Act 2007.
The applicant is more likely to succeed if they have at least one ‘surety’. This can be a person who will pay money if the applicant breaks the terms of bail, ensures that the applicant stays in touch with authorities and can attend the applicant’s hearing.
The Relevant Factors in Granting Immigration Bail
The Secretary of State will consider whether:
there is a realistic prospect of removal within a reasonable period will be considered
the person will fail to comply with immigration bail conditions
the person will commit an offence while on immigration bail
the person poses danger to public security in the UK.
Conditions of Bail
Successful applicants will be released until trial. They will need to live at the address they provided in the application and report regularly to an immigration official. Otherwise, the applicant may be returned to a detention centre or the applicant’s sureties will need to pay the money
How to Apply for the Secretary of State Bail and Processing Time.
The Home Office requires all Secretary of State bail applications to be made using the BAIL401 form. The form is available on the government website or can be obtained from the welfare office in the detention centre. The decision will be made within 10 working days. There is no fee for applying,
The individual is more likely to be refused if they have broken the terms of bail before or have a criminal record, and the judge thinks they might re-offend. If the applicant is refused, they will get a written statement telling them the reason for the refusal. There is no limit on the number of applications for immigration bail a person can make to the Secretary of State, or when an application can be made.CONSULTATION
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In the recent case of Topadar v Secretary of State for the Home Department  EWCA Civ 1525 the Court of Appeal examined two questions:
At what point is an immigration application decided by the Home Office?
Is it procedurally unfair for the Home Office to refuse an application due to the applicant’s sponsor (i.e. their employer) failing to provide additional information (without the applicant ever being made aware of the request)?
The Court of Appeal decided: