A senior judge has reminded the government that the independent judiciary deal with cases based on the law after the Home Office expressed surprise at the level of bail granted recently.
Letters between James Stevens, director of appeals, litigation and administrative review at UK Visas and Immigration, which is part of the Home Office, and Michael Clements, president of the First-Tier Tribunal Immigration and Asylum Chamber, were posted on the Immigration Law Practitioners Association website yesterday.
In a letter dated 29 April, Stevens updated the president on immigration detention during the Covid-19 pandemic. Since the outbreak, the department reviewed the cases of everyone detained under immigration powers. ‘Where people remain in detention it is because we believe that their removal is a realistic prospect, and continued detention is reasonable in light of their particular situation, the likelihood of their absconding if released, and the level of risk they pose to the public,’ he said.
In light of recent developments, Stevens said: 'The Home Office is somewhat surprised at the level of grants of bail in recent weeks.' He also asked if immigration judges could provide written reasons in cases where bail is granted.
Clements replied on 1 May. After thanking Stevens for the ‘helpful’ update, the president said: ‘As independent judiciary we decide bail applications in accordance with the law, which includes the guidance which has been issued. There has been no change in either the law or the guidance.’
Written reasons were unnecessary, Clements said. ‘Judges should always give brief oral reasons when bail is granted and the presenting officer can take a note of the same. As you will know, I have instituted what I consider to be a real innovation during the present crisis to help all parties, namely the “minded to grant” process which not only gives judicial reasons why bail may be granted but gives the Home Office those reasons in good time prior to the hearing. This enables the Home Office to address those reasons if bail is still opposed.
‘Unfortunately the feedback that I am receiving is not only that the Home Office rarely consent to the grant of bail having seen the “minded to grant” but that bail is still opposed at the hearing without any meaningful additional representations being given by presenting officers which address or challenge the reasons. I am aware that generic submissions have now been prepared and are either being attached to the bail summary, submitted at the hearing, or read out by the presenting officers. This is not a helpful practice. These only repeat the law with which the judge is already familiar, add little of substance and do not seek to address the specific circumstances of the application.’