Last year, our friends at Scottish Detainee Visitors let us know about a great resource by Immigration Bail Observation Project Scotland (IBOPS): Guide To Being A Cautioner In The Scottish Immigration Bail Process.
We link to this great guide in our Toolkit section on Immigration Detention, and in this blog post we will draw out some of the key points (though we recommend reading the whole guide for more detail!). Although the guide is specifically about the system in Scotland, much of the advice is useful for supporting people across the UK.
There will be significant changes to immigration bail once the relevent section (Section 61) of the 2016 Immigration Act comes into force, and we will provide updates once this happens. This briefing from ILPA is a very useful summary of the changes to come, presumably at some point this year.
What is immigration detention?
Immigration detention is the government policy of locking up people who do not (yet) have leave to remain in the UK, or whose leave to remain has expired. People are locked up in prison-like conditions with guards, behind bars and barbed wire. It’s very difficult for people in detention to communicate with their lawyers, families, friends and support networks.
What is a surety/cautioner?
After being detained for seven days or more, someone in immigration detention can apply for immigration bail. This is an application for release from detention. Read more about bail in this guidebook by the organisation Bail for Immigration Detainees.
There is a form of bail called Chief Immigration Officer bail but this is very difficult to get, and is due to be scrapped when the 2016 Immigration Act section on bail comes into force. The information in this blog post is therefore about applying for bail to an immigration judge.
To successfully apply for bail, the person in detention will need an address to be bailed to. In addition, it is very helpful to have a surety/cautioner (although you can apply for bail without one).
A surety/cautioner is someone who undertakes to encourage the person released on bail to comply with certain bail conditions.
A cautioner is the term used in Scotland, a surety is name used in the rest of the UK.
Research by IBOPS showed that people applying for bail with a cautioner were twice as likely to be granted bail than applicants without.
In Scotland currently, the cautioner will deposit a sum of money (a bail bond) which they risk losing if the person breaks their bail conditions (this will change when the bail section of the 2016 Immigration Act comes into force). In the rest of the UK, a sum of money is promised but not paid upfront, and may have to be paid if bail conditions are broken.
Who can be a surety/cautioner?
Anyone who is legally in the UK can be a surety/cautioner. This includes British citizens, people with student visas, people with refugee status, people with work permits, European Union nationals, and asylum seekers.
The IBOPS guide says:
in order to be an effective cautioner you will need to persuade the Tribunal [the court where the bail hearing will take place] that you are able to exercise some influence over the bail applicant and that you will encourage them to comply with their bail conditions. To do this you will need to show that you have a pre-existing relationship with them. It is helpful if you have a home address, some savings or regular income, and no past criminal convictions.
The bail bond
The bail bond is the money that in Scotland the cautioner will deposit up front.
The following information from the IBOPS guide for cautioners is also useful for anyone considering being a surety:
There is no set amount that a cautioner has to pay for the bail bond. The purpose of the bail bond is to give you an incentive to make sure that the person on bail does not abscond. Therefore, the money you pay needs to be an amount that you would not want to lose. IBOPS data shows that the amount most commonly offered in Scottish bail hearings was £1000. It is important to remember that bail bonds can be kept for a long period of time. You need to think carefully about whether you can live without the money you are offering. The Tribunal judge may reject the money that you have offered if they believe that you would not be able to support yourself and your family without it.
At the bail hearing you may need to show bank statements or pay slips to prove to the judge that you have the money and that it is your own. You might be asked questions about where the money has come from. You might also be asked questions about your income, any benefits you receive, and your living arrangements…
A person applying for bail can ask more than one person to be a cautioner. If they have lots of friends or family members who are willing to help, then they can ask each of them to offer some money as bail bond. Different people can offer different amounts depending on how much they have. You should always think about your own situation and not compare yourself to other cautioners.
If the bail applicant has a legal representative, then they should be able to give you advice on how much you should offer. Changing the sum you have offered can cause problems at the Tribunal, so it is important to try and get it right in the first place.
As mentioned above, for someone to be released from detention on immigration bail, they must have an address to be bailed to.
People unable to provide this can currently apply for a Section 4 accommodation address (see more about that here), though there will be a new arrangement once the Immigration Act provisions come into force. Section 4 addresses can take a very long time to arrange, and the new arrangements are likely to be problematic, so an alternative address could be very useful for someone applying for bail.
The IBOPS guide says:
If the person applying for bail owns or rents a house, then they can put this down as the bail address. If they do not own a house, then they will have to rely on someone else to provide it for them. As their cautioner, you can provide the bail address, but you do not have to…
Providing your home as the bail address is a big commitment. If the person is released on bail, they will have to live in your house for as long as their bail lasts. As well as providing them with a room, you may also need to pay for their daily living costs (food, toiletries, clothes etc.). If they have personal savings, they can use this to help. Bail can often last for a number of months, so the Tribunal judge will want to see evidence that you have enough room in your house and a regular income that you can use to help support the person released on bail…
If the person is living with you, you will be able to remind them to report on the days that they are required to. This daily contact with the person released on bail will be a strong argument that should help you persuade the Tribunal that you are a suitable cautioner.
The bail hearing
As a surety/cautioner, you are required to attend the person’s bail hearing.
Diagram from BID’s “How to get out of detention”. The ‘YOU’ in this diagram refers to the person in detention. As a cautioner/surety you will be sat in the ‘members of the public’ section, usually at the far side nearest the judge. You may not be present for the whole of the hearing – the judge may instruct that you are brought in only for the relevant section (see below).
At the hearing the applicant and the Home Office will present their arguments to a judge as to whether or not bail should be granted. It is very unusual for the applicant to actually be at the bail hearing. They will normally be kept in the Immigration Removal Centre. Television screens, microphones and cameras will be set up so that they can take part in the hearing via a video link. The legal representative for the applicant, if they have one, will appear in person at the hearing to argue on their behalf.
The IBOPS guide has very useful information about the Tribunal in Glasgow, which is where all bail hearings in Scotland will take place. See page 11 of the guide here.
The guide provides helpful information about appearing at the hearing, for cautioners, and this information is useful for sureties elsewhere in the UK as well as anyone due to have a bail hearing or supporting someone who has.
When you attend the bail heading you will normally be asked some questions by the bail applicant’s lawyer, the Home Office representative and the judge. Before you go to the hearing, it would be useful for you to think about some answers to the questions that you might be asked. Some of the questions that you can be asked might feel intrusive or harsh and it is important that you are emotionally prepared to answer them. For example, you may be asked in-depth questions about your financial and living arrangements, and whether you can afford to be a cautioner.
As the role of a cautioner is to make sure that the person released on bail follows their bail conditions, the Tribunal judge will want to know about the
level of influence you are able to exercise over the applicant. You will likely be asked questions to see how you will influence them and how you will react to certain situations. It is likely that the Home Office representative will try to show that you cannot be relied upon as a cautioner. In order to present yourself as a suitable cautioner you should prepare answers to questions concerning:
- Whether you have an established relationship with the bail applicant;
- How you will keep in contact with the applicant if they are released;
- Examples of how you have exercised influence over the bail applicant in the past;
- How you will respond if the person released on bail absconds;
- If the bail applicant failed to follow immigration laws (e.g. overstaying a visa / working illegally), whether you knew about it and how you responded;
- How you will respond if the Home Office take steps to remove the bailed person from the UK.
As a friend of family member of the bail applicant, Question 5 and 6 can often be difficult to answer. In relation to the previous immigration offences of the bail applicant, it is important that you answer the questions honestly. As for potential removal, you need to remember that even if you feel removal is unfair, as a cautioner your role is to encourage the person to comply with the bail conditions and cooperate with the Home Office.
Documents to Prepare
When you attend the bail hearing you will need to take a number of documents with you. At minimum you should take 3 months’ worth of bank statements, your passport and any documents relating to your immigration status. If the bail applicant has a legal representative, they should be able to advise you exactly on what to bring. These can include:
- Evidence of savings (3 months’ bank statements)
- Evidence of income (3 months’ paycheques)
- Evidence of nationality and immigration status (passport and visa papers)
- Evidence of employment (e.g. letter from employer)
- Evidence of place of residence (e.g. Council Tax Bill) (only if you are providing the bail address)…
The judge is in charge of the hearing and will run it in the way that they think is best, so the format can be different from judge to judge. However, the hearing will normally proceed in the following manner:
- The judge will introduce himself or herself to the bail applicant. They will mention who else is in the room and should outline how the hearing will proceed.
- The judge will ask the lawyer for the bail applicant to present their arguments as to why bail should be granted. The lawyer will make their arguments. They might ask the applicant some questions via the video link, and might as you some questions.
- The judge will ask the Home Office representative to make their arguments as to why bail should be refused. The Home Office representative will make their arguments and might ask the applicant some questions via the video link, and might ask you some questions.
- The judge can interrupt at any point and ask questions to the applicant or to you.
Tribunal hearings are less formal than normal court hearings. However, there are still some rules that you need to be aware of:
- You should turn off your mobile phone and other electronic devices you have when you enter the hearing room.
- You should stand up when the judge enters and leaves the room.
- You should remain as quiet as you can when you are in the hearing room and try your best not to disturb the proceedings
The judge is in charge of the hearing. In general, you should only speak when you are spoken to and you should not interrupt the judge or the representatives. If, however, something is unclear or incorrect, or you believe that something you said has been misunderstood, you should try bring it to the attention of the Tribunal.
Sometimes the judge will decide on the spot whether or not they are going to grant bail. Or, they may leave the room for a while to think about it.
If the judge refuses bail, they will tell the person in detention and give a short explanation why. They will later provide a written form of the decision to the person who applied for bail (or their lawyer). The person applying for bail will be taken back into detention.
If the judge grants bail, they will tell the person and explain why, and tell the person the conditions attached to bail. The person will be taken back to detention to prepare for release.