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Immigration Act 2016

Status:

This is the original version (as it was originally enacted).

PART 1Main provisions

Power to grant immigration bail

1(1)The Secretary of State may grant a person bail if—

(a)the person is being detained under paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal),

(b)the person is being detained under paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation),

(c)the person is being detained under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal), or

(d)the person is being detained under section 36(1) of the UK Borders Act 2007 (detention pending deportation).

(2)The Secretary of State may grant a person bail if the person is liable to detention under a provision mentioned in sub-paragraph (1).

(3)The First-tier Tribunal may, on an application made to the Tribunal for the grant of bail to a person, grant that person bail if—

(a)the person is being detained under paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971,

(b)the person is being detained under paragraph 2(1), (2) or (3) of Schedule 3 to that Act,

(c)the person is being detained under section 62 of the Nationality, Immigration and Asylum Act 2002, or

(d)the person is being detained under section 36(1) of the UK Borders Act 2007.

(4)In this Schedule references to the grant of immigration bail, in relation to a person, are to the grant of bail to that person under any of sub-paragraphs (1) to (3) or under paragraph 10(12) or (13) (release following arrest for breach of bail conditions).

(5)A person may be granted and remain on immigration bail even if the person can no longer be detained, if—

(a)the person is liable to detention under a provision mentioned in sub-paragraph (1), or

(b)the Secretary of State is considering whether to make a deportation order against the person under section 5(1) of the Immigration Act 1971.

(6)A grant of immigration bail to a person does not prevent the person’s subsequent detention under a provision mentioned in sub-paragraph (1).

(7)For the purposes of this Schedule a person is on immigration bail from when a grant of immigration bail to the person commences to when it ends.

(8)A grant of immigration bail to a person ends when—

(a)in a case where sub-paragraph (5) applied to the person, that sub-paragraph no longer applies to the person,

(b)the person is granted leave to enter or remain in the United Kingdom,

(c)the person is detained under a provision mentioned in sub-paragraph (1), or

(d)the person is removed from or otherwise leaves the United Kingdom.

(9)This paragraph is subject to paragraph 3 (exercise of power to grant immigration bail).

Conditions of immigration bail

2(1)Subject to sub-paragraph (2), if immigration bail is granted to a person, it must be granted subject to one or more of the following conditions—

(a)a condition requiring the person to appear before the Secretary of State or the First-tier Tribunal at a specified time and place;

(b)a condition restricting the person’s work, occupation or studies in the United Kingdom;

(c)a condition about the person’s residence;

(d)a condition requiring the person to report to the Secretary of State or such other person as may be specified;

(e)an electronic monitoring condition (see paragraph 4);

(f)such other conditions as the person granting the immigration bail thinks fit.

(2)Sub-paragraph (3) applies in place of sub-paragraph (1) in relation to a person who is being detained under a provision mentioned in paragraph 1(1)(b) or (d) or who is liable to detention under such a provision.

(3)If immigration bail is granted to such a person—

(a)subject to sub-paragraphs (5) to (9), it must be granted subject to an electronic monitoring condition,

(b)if, by virtue of sub-paragraph (5) or (7), it is not granted subject to an electronic monitoring condition, it must be granted subject to one or more of the other conditions mentioned in sub-paragraph (1), and

(c)if it is granted subject to an electronic monitoring condition, it may be granted subject to one or more of those other conditions.

(4)Immigration bail granted in accordance with sub-paragraph (1) or (3) may also be granted subject to a financial condition (see paragraph 5).

(5)Sub-paragraph (3)(a) does not apply to a person who is granted immigration bail by the Secretary of State if the Secretary of State considers that to impose an electronic monitoring condition on the person would be—

(a)impractical, or

(b)contrary to the person’s Convention rights.

(6)Where sub-paragraph (5) applies, the Secretary of State must not grant immigration bail to the person subject to an electronic monitoring condition.

(7)Sub-paragraph (3)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Secretary of State informs the Tribunal that the Secretary of State considers that to impose an electronic monitoring condition on the person would be—

(a)impractical, or

(b)contrary to the person’s Convention rights.

(8)Where sub-paragraph (7) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.

(9)In considering for the purposes of this Schedule whether it would be impractical to impose an electronic monitoring condition on a person, or would be impractical for a person to continue to be subject to such a condition, the Secretary of State may in particular have regard to—

(a)any obstacles to making arrangements of the kind mentioned in paragraph 4 in relation to the person,

(b)the resources that are available for imposing electronic monitoring conditions on persons to whom sub-paragraph (2) applies and for managing the operation of such conditions in relation to such persons,

(c)the need to give priority to the use of those resources in relation to particular categories of persons to whom that sub-paragraph applies, and

(d)the matters listed in paragraph 3(2) as they apply to the person.

(10)In this Schedule “Convention rights” is to be construed in accordance with section 1 of the Human Rights Act 1998.

(11)In this Schedule “bail condition”, in relation to a person on immigration bail, means a condition to which the person’s bail is subject.

Exercise of power to grant immigration bail

3(1)The Secretary of State or the First-tier Tribunal must have regard to the matters listed in sub-paragraph (2) in determining—

(a)whether to grant immigration bail to a person, and

(b)the conditions to which a person’s immigration bail is to be subject.

(2)Those matters are—

(a)the likelihood of the person failing to comply with a bail condition,

(b)whether the person has been convicted of an offence (whether in or outside the United Kingdom or before or after the coming into force of this paragraph),

(c)the likelihood of a person committing an offence while on immigration bail,

(d)the likelihood of the person’s presence in the United Kingdom, while on immigration bail, causing a danger to public health or being a threat to the maintenance of public order,

(e)whether the person’s detention is necessary in that person’s interests or for the protection of any other person, and

(f)such other matters as the Secretary of State or the First-tier Tribunal thinks relevant.

(3)A person who is being detained under paragraph 16(1) of Schedule 2 to the Immigration Act 1971 must not be granted immigration bail by the First-tier Tribunal until after the end of the period of 8 days beginning with the date of the person’s arrival in the United Kingdom.

(4)A person must not be granted immigration bail by the First-tier Tribunal without the consent of the Secretary of State if—

(a)directions for the removal of the person from the United Kingdom are for the time being in force, and

(b)the directions require the person to be removed from the United Kingdom within the period of 14 days beginning with the date of the decision on whether the person should be granted immigration bail.

(5)If the Secretary of State or the First-tier Tribunal decides to grant, or to refuse to grant, immigration bail to a person, the Secretary of State or the Tribunal must give the person notice of the decision.

(6)Where the First-tier Tribunal is required under sub-paragraph (5) to a give a person notice of a decision, it must also give the Secretary of State notice of the decision.

(7)Where the decision is to grant immigration bail, a notice under sub-paragraph (5) or (6) must state—

(a)when the grant of immigration bail commences, and

(b)the bail conditions.

(8)The commencement of a grant of immigration bail may be specified to be conditional on arrangements specified in the notice being in place to ensure that the person is able to comply with the bail conditions.

Electronic monitoring condition

4(1)In this Schedule an “electronic monitoring condition” means a condition requiring the person on whom it is imposed (“P”) to co-operate with such arrangements as the Secretary of State may specify for detecting and recording by electronic means one or more of the following—

(a)P’s location at specified times, during specified periods of time or while the arrangements are in place;

(b)P’s presence in a location at specified times, during specified periods of time or while the arrangements are in place;

(c)P’s absence from a location at specified times, during specified periods of time or while the arrangements are in place.

(2)The arrangements may in particular—

(a)require P to wear a device;

(b)require P to make specified use of a device;

(c)require P to communicate in a specified manner and at specified times or during specified periods;

(d)involve the exercise of functions by persons other than the Secretary of State or the First-tier Tribunal.

(3)If the arrangements require P to wear, or make specified use of, a device they must—

(a)prohibit P from causing or permitting damage to, or interference with the device, and

(b)prohibit P from taking or permitting action that would or might prevent the effective operation of the device.

(4)In this paragraph “specified” means specified in the arrangements.

(5)An electronic monitoring condition may not be imposed on a person unless the person is at least 18 years old.

Financial condition

5(1)In this Schedule a “financial condition” means a condition requiring the payment of a sum of money by the person to whom immigration bail is granted (“P”) or another person, in a case where P fails to comply with another condition to which P’s immigration bail is subject.

(2)A financial condition may be imposed on P only if the person imposing the condition thinks that it would be appropriate to do so with a view to ensuring that P complies with the other bail conditions.

(3)The financial condition must specify—

(a)the sum of money required to be paid,

(b)when it is to be paid, and

(c)the form and manner in which it is to be paid.

(4)A sum to be paid under a financial condition is to be paid to the person who granted the immigration bail, subject to sub-paragraph (5).

(5)If the First-tier Tribunal has directed that the power in paragraph 6(1) (power to vary bail conditions) is to be exercisable by the Secretary of State in relation to P, the sum is to be paid to the Secretary of State.

(6)No sum is required to be paid under a financial condition unless the person who is liable to make a payment under it has been given an opportunity to make representations to the person to whom it is to be paid.

(7)In England and Wales a sum payable under a financial condition is recoverable as if it were payable under an order of the county court in England and Wales.

(8)In Scotland a sum payable under a financial condition may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(9)In Northern Ireland a sum payable under a financial condition is recoverable as if it were payable under an order of a county court in Northern Ireland.

(10)Where action is taken under this paragraph for the recovery of a sum payable under a financial condition, the requirement to pay the sum is—

(a)in relation to England and Wales, to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc) as if it were a judgment entered in the county court;

(b)in relation to Northern Ireland, to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order.

Power to vary bail conditions

6(1)Subject to this paragraph and to paragraphs 7 and 8, where a person is on immigration bail—

(a)any of the conditions to which it is subject may be amended or removed, or

(b)one or more new conditions of the kind mentioned in paragraph 2(1) or (4) may be imposed on the person.

(2)The power in sub-paragraph (1) is exercisable by the person who granted the immigration bail, subject to sub-paragraphs (3) and (4).

(3)The Secretary of State may exercise the power in sub-paragraph (1) in relation to a person to whom immigration bail was granted by the First-tier Tribunal if the Tribunal so directs.

(4)If the First-tier Tribunal gives a direction under sub-paragraph (3), the Tribunal may not exercise the power in sub-paragraph (1) in relation to the person.

(5)The First-tier Tribunal may not exercise the power in sub-paragraph (1)(a) so as to amend an electronic monitoring condition.

(6)If the Secretary of State or the First-tier Tribunal exercises, or refuses to exercise, the power in sub-paragraph (1), the Secretary of State or the Tribunal must give notice to the person who is on immigration bail.

(7)Where the First-tier Tribunal is required under sub-paragraph (6) to give notice to a person, it must also give notice to the Secretary of State.

Removal etc of electronic monitoring condition: bail managed by Secretary of State

7(1)This paragraph applies to a person who—

(a)is on immigration bail—

(i)pursuant to a grant by the Secretary of State, or

(ii)pursuant to a grant by the First-tier Tribunal in a case where the Tribunal has directed that the power in paragraph 6(1) is exercisable by the Secretary of State, and

(b)before the grant of immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d).

(2)Where the person is subject to an electronic monitoring condition, the Secretary of State—

(a)must not exercise the power in paragraph 6(1) so as to remove the condition unless sub-paragraph (3) applies, but

(b)if that sub-paragraph applies, must exercise that power so as to remove the condition.

(3)This sub-paragraph applies if the Secretary of State considers that—

(a)it would be impractical for the person to continue to be subject to the condition, or

(b)it would be contrary to that person’s Convention rights for the person to continue to be subject to the condition.

(4)If, by virtue of paragraph 2(5) or (7) or this paragraph, the person is not subject to an electronic monitoring condition, the Secretary of State—

(a)must not exercise the power in paragraph 6(1) so as to impose such a condition on the person unless sub-paragraph (5) applies, but

(b)if that sub-paragraph applies, must exercise that power so as to impose such a condition on the person.

(5)This sub-paragraph applies if, having considered whether it would be impractical or contrary to the person’s Convention rights to impose such a condition on the person, the Secretary of State—

(a)does not consider that it would be impractical to do so, and

(b)does not consider that it would be contrary to the person’s Convention rights to do so.

Amendment etc of electronic monitoring condition: bail managed by First-tier Tribunal

8(1)This paragraph applies to a person who—

(a)is on immigration bail pursuant to a grant by the First-tier Tribunal in a case where the Tribunal has not directed that the power in paragraph 6(1) is exercisable by the Secretary of State, and

(b)before the person was granted immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d).

(2)Where the person is subject to an electronic monitoring condition, the First-tier Tribunal—

(a)must not exercise the power in paragraph 6(1) so as to remove the condition unless sub-paragraph (3) applies, but

(b)if that sub-paragraph applies, must exercise that power so as to remove the condition.

(3)This sub-paragraph applies if the Secretary of State notifies the First-tier Tribunal that the Secretary of State considers that—

(a)it would be impractical for the person to continue to be subject to the condition, or

(b)it would be contrary to that person’s Convention rights for the person to continue to be subject to the condition.

(4)If, by virtue of paragraph 2(7) or this paragraph, the person is not subject to an electronic monitoring condition, the First-tier Tribunal—

(a)must not exercise the power in paragraph 6(1) so as to impose such a condition on the person unless sub-paragraph (5) applies, but

(b)if that sub-paragraph applies, must exercise that power so as to impose such a condition on the person.

(5)This sub-paragraph applies if the Secretary of State notifies the First-tier Tribunal that the Secretary of State—

(a)does not consider that it would be impractical to impose such a condition on the person, and

(b)does not consider that it would be contrary to the person’s Convention rights to impose such a condition on the person.

Powers of Secretary of State to enable person to meet bail conditions

9(1)Sub-paragraph (2) applies where—

(a)a person is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition, and

(b)the person would not be able to support himself or herself at the address unless the power in sub-paragraph (2) were exercised.

(2)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of that person at that address.

(3)But the power in sub-paragraph (2) applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power.

(4)The Secretary of State may make a payment to a person on immigration bail in respect of travelling expenses which the person has incurred or will incur for the purpose of complying with a bail condition.

(5)But the power in sub-paragraph (4) applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the making of the payment.

Arrest for breach of immigration bail

10(1)An immigration officer or a constable may arrest without warrant a person on immigration bail if the immigration officer or constable—

(a)has reasonable grounds for believing that the person is likely to fail to comply with a bail condition, or

(b)has reasonable grounds for suspecting that the person is failing, or has failed, to comply with a bail condition.

(2)Sub-paragraph (3) applies if an appropriate judicial officer is satisfied that there are reasonable grounds for believing that a person liable to be arrested under this paragraph is to be found on any premises.

(3)The appropriate judicial officer may issue a warrant authorising any immigration officer or constable to enter, by reasonable force if necessary, the premises named in the warrant for the purposes of searching for and arresting that person.

(4)Sections 28J and 28K of the Immigration Act 1971 (warrants: application and execution) apply, with any necessary modifications, to warrants under sub-paragraph (3).

(5)Sub-paragraph (6) applies where—

(a)a warrant under this paragraph is issued for the purposes of the arrest of a person under this paragraph, and

(b)an immigration officer or a constable enters premises in reliance on the warrant and detains a person on the premises.

(6)A detainee custody officer may enter the premises, if need be by reasonable force, for the purpose of carrying out a search.

(7)In sub-paragraph (6)

  • “detainee custody officer” means a person in respect of whom a certificate of authorisation is in force under section 154 of the Immigration and Asylum Act 1999 (detained persons: escort and custody), and

  • “search” means a search under paragraph 2(1)(a) of Schedule 13 to that Act (escort arrangements: power to search detained person).

(8)Paragraphs 25A to 25C of Schedule 2 to the Immigration Act 1971 (entry and search of persons and premises) apply in relation to a person arrested under this paragraph as they apply in relation to a person arrested under that Schedule.

(9)A person arrested under this paragraph—

(a)must, as soon as is practicable after the person’s arrest, be brought before the relevant authority, and

(b)may be detained under the authority of the Secretary of State in the meantime.

(10)The relevant authority is—

(a)the Secretary of State, if the Secretary of State granted immigration bail to the arrested person or the First-tier Tribunal has directed that the power in paragraph 6(1) is exercisable by the Secretary of State in relation to that person, or

(b)otherwise, the First-tier Tribunal.

(11)Where an arrested person is brought before the relevant authority, the relevant authority must decide whether the arrested person has broken or is likely to break any of the bail conditions.

(12)If the relevant authority decides the arrested person has broken or is likely to break any of the bail conditions, the relevant authority must—

(a)direct that the person is to be detained under the provision mentioned in paragraph 1(1) under which the person is liable to be detained, or

(b)grant the person bail subject to the same or different conditions, subject to sub-paragraph (14).

(13)If the relevant authority decides the person has not broken and is not likely to break any of the bail conditions, the relevant authority must grant the person bail subject to the same conditions (but this is subject to sub-paragraph (14), and does not prevent the subsequent exercise of the powers in paragraph 6).

(14)The power in sub-paragraph (12) to grant bail subject to the same conditions and the duty in sub-paragraph (13) to do so do not affect the requirement for the grant of bail to comply with paragraph 2.

(15)In this paragraph—

  • “appropriate judicial officer” means—

    (a)

    in relation to England and Wales, a justice of the peace;

    (b)

    in relation to Scotland, the sheriff or a justice of the peace;

    (c)

    in relation to Northern Ireland, a lay magistrate;

  • “premises”—

    (a)

    in relation to England and Wales, has the same meaning as in the Police and Criminal Evidence Act 1984;

    (b)

    in relation to Scotland, has the same meaning as in section 412 of the Proceeds of Crime Act 2002;

    (c)

    in relation to Northern Ireland, has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)).

Duty to arrange consideration of bail

11(1)Subject as follows, the Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person if—

(a)the person is being detained under a provision mentioned in paragraph 1(1)(a) or (c), and

(b)the period of four months beginning with the relevant date has elapsed.

(2)In sub-paragraph (1)(b) “the relevant date” means—

(a)the date on which the person’s detention began, or

(b)if a relevant event has occurred in relation to the person since that date, the last date on which such an event has occurred in relation to the person.

(3)The following are relevant events in relation to a person for the purposes of sub-paragraph (2)(b)—

(a)consideration by the First-tier Tribunal of whether to grant immigration bail to the person;

(b)withdrawal by the person of an application for immigration bail treated as made by the person as the result of a reference under this paragraph;

(c)withdrawal by the person of a notice given under sub-paragraph (6)(b).

(4)The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person—

(a)includes such consideration regardless of whether there is a hearing or the First-tier Tribunal makes a determination in the case in question;

(b)includes the dismissal of an application by virtue of provision made under paragraph 12(2).

(5)The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person does not include such consideration in a case where—

(a)the person has made an application for bail, other than one treated as made by the person as the result of a reference under this paragraph, and

(b)the First-tier Tribunal is prevented from granting bail to the person by paragraph 3(4) (requirement for Secretary of State’s consent to bail).

(6)The duty in sub-paragraph (1) to arrange a reference does not apply if—

(a)section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in interests of national security etc) applies to the person, or

(b)the person has given to the Secretary of State, and has not withdrawn, written notice that the person does not wish the person’s case to be referred to the First-tier Tribunal under this paragraph.

(7)A reference to the First-tier Tribunal under this paragraph in relation to a person is to be treated for all purposes as an application by that person for the grant of bail under paragraph 1(3).

Tribunal Procedure Rules

12(1)Tribunal Procedure Rules must make provision with respect to applications to the First-tier Tribunal under this Schedule and matters arising out of such applications.

(2)Tribunal Procedure Rules must secure that, where the First-tier Tribunal has decided not to grant a person immigration bail, the Tribunal must dismiss without a hearing any further application for the person to be granted immigration bail which—

(a)is an application to which sub-paragraph (3) applies, but

(b)is not an application to which sub-paragraph (4) applies.

(3)This sub-paragraph applies to an application made during the period of 28 days beginning with the date of the decision mentioned in sub-paragraph (2).

(4)This sub-paragraph applies to an application on which the person demonstrates there has been a material change in the person’s circumstances.

Transitional provision

13(1)Regulations under section 92(1) may, in particular, provide for a person to whom this sub-paragraph applies to be treated, for such purposes as may be specified, as having been granted immigration bail in such circumstances and subject to such conditions as may be specified.

(2)Sub-paragraph (1) applies to a person who, at the specified time, was not in detention on the basis that—

(a)the person had been temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971,

(b)the person had been released from detention under that paragraph,

(c)the person was liable to be detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 but, by virtue of a direction of the Secretary of State or the court, was not so detained,

(d)the person was liable to be detained under paragraph 2(2) or (3) of that Schedule but was not so detained,

(e)the person had been released from detention under section 36(3) of the UK Borders Act 2007, or

(f)the person had been released on bail from detention under any provision of the Immigration Acts.

(3)Regulations under section 92(1) may, in particular—

(a)make provision about the circumstances in which the power in paragraph 6(1) may or must be exercised so as to impose an electronic monitoring condition on a person to whom this sub-paragraph applies;

(b)enable the Secretary of State to exercise a discretion in determining whether an electronic monitoring condition should be imposed on such a person,

and may, in particular, do so by providing for paragraph 7 or 8 to have effect with modifications in relation to such a person.

(4)Sub-paragraph (3) applies to a person who—

(a)by virtue of regulations under section 92(1) is treated as having been granted immigration bail as a result of falling within—

(i)sub-paragraph (2)(c), (d) or (e), or

(ii)sub-paragraph (2)(f) on the basis that the person had been released on bail from detention under paragraph 2 of Schedule 3 to the Immigration Act 1971,

(b)is not treated as being subject to an electronic monitoring condition, and

(c)is not otherwise subject to an electronic monitoring condition.

(5)Sub-paragraph (3) applies to a person who—

(a)is on immigration bail pursuant to a grant before the coming into force of paragraph 2(2) and (3), or the coming into force of those provisions in relation to grants of that kind,

(b)before the grant of immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d), and

(c)is not subject to an electronic monitoring condition.

(6)In this paragraph “specified” means specified in regulations under section 92(1).

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