The Immigration Act 2016 (Commencement and Transitional Provisions No. 1) (England and Wales) Regulations 2021

EXPLANATORY NOTE

(This note is not part of the Regulations)

Schedule 10 to the Immigration Act 2016 (c. 9) (the “2016 Act”) contains provisions relating to immigration bail. These Regulations bring into force on 31st August 2021 in England and Wales the provisions of Schedule 10 which are not already in force and sections 61(1) and (2) of the 2016 Act insofar as they relate to those provisions. These provisions relate to the duty to impose electronic monitoring conditions on those granted or on immigration bail who are subject to deportation.

Regulation 2 contains provisions commencing the following provisions of Schedule 10: sub-paragraphs (2), (3) and (5) to (10) of paragraph 2 (the duty to impose an electronic monitoring condition on those granted immigration bail on or after 31 August 2021 who are liable for detention pending deportation); paragraph 7 (removal etc of electronic monitoring condition where bail is managed by the Secretary of State); paragraph 8 (amendment etc of electronic monitoring condition where bail is managed by the First Tier Tribunal); and paragraph 25 to the extent it applies those provisions of Schedule 10 being brought into force under these Regulations in a modified form to the Special Immigration Appeals Commission.

The duty to impose an electronic monitoring condition is subject to exemptions where it is impractical to do so (having regard in particular to those matters set out at paragraph 2(9)(a) to (d) of Schedule 10) or where the Secretary of State considers that it would be in breach of the person’s rights under the European Convention on Human Rights.

In Schedule 10, paragraphs 7(2) and (3) and 8(2) and (3) require that where an electronic monitoring condition has been imposed on a person, it must be removed only in circumstances where the Secretary of State considers either of these exemptions apply. Paragraphs 7(4) and (5) and 8(4) and (5) require that where a person has not been subject to electronic monitoring as a result of those exemptions, but the Secretary of State considers that neither exemption applies, an electronic monitoring condition must be imposed. Under paragraph 6 (which was previously commenced), conditions of bail must be varied by the Secretary of State or the First-tier Tribunal depending on which is managing that person’s bail.

Regulation 3 gives effect to the Schedule to these Regulations. The Schedule makes a number of transitional provisions to reflect the phased implementation of electronic monitoring for those who, as at 31st August 2021, are on immigration bail and liable to be detained pending deportation but who are not subject to electronic monitoring.

Paragraph 1 sets out that the transitional provisions apply to those who are on immigration bail and liable to be detained pending deportation.

Paragraph 2 sets out that the transitional provisions also apply to those who are deemed to be on immigration bail by virtue of regulations. Provisions of Schedule 10 previously brought into force a new framework for immigration bail, replacing a legal framework containing six different legal statuses (including immigration bail and temporary admission) with a single power of immigration bail. By virtue of the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017, those who were at large under any such predecessor status are treated as having been granted immigration bail.

Paragraphs 3 and 4 make transitional provisions in relation to a person on immigration bail and liable to be detained pending deportation who is not subject to an electronic monitoring condition as at 31st August 2021. Paragraphs 3 and 4 provide that from 31st January 2022, an electronic monitoring condition must be imposed on them, except where it would be impractical or in breach of their Convention rights. In considering whether it is impractical to impose or continue an electronic monitoring condition, the Secretary of State may have regard to those factors set out in paragraphs 2(9)(a) to (d) of Schedule 10.