Two weeks ago, the Home Office quietly abolished the system for providing bail addresses to migrants in detention. Whether anything is to replace it remains unclear. For the moment, migrants in detention who do not have their own accommodation face street homelessness or being stuck in detention.
The changes have been in the offing for two years since the passage of the 2016 Immigration Act, which repealed the provisions under which people in detention can access accommodation in order to be released. Those provisions were a lifeline for many, because the Home Office and the courts would usually not release people without an address.
At the time, we lobbied hard that the changes would leave vulnerable people sleeping under bridges or stranded in detention. In response, the then Immigration Minister James Brokenshire appeared to reassure Parliament that the Home Office would provide addresses where necessary for the courts to release people on bail.
Two years on, that reassurance seems empty. The Home Office has finally put the new provisions into effect, and published guidance. To no-one’s surprise, the guidance is both baffling and disturbing.
There will be no more Section 4(1) addresses, which were routinely offered to migrants applying for bail. It may be that some people in detention can apply for an address under Section 4(2), in the same way as some refused asylum-seekers in the community. But completing the 35-page form, requiring various evidence, for each monthly bail application, is not a plausible process for people in detention.
For one thing, the many non-asylum-seekers in detention cannot apply at all. And even refused asylum-seekers who find a way past the 35 pages seem likely to be denied addresses in the vast majority of cases, so narrow are the eligibility criteria.
There are various indications in the guidance that the Home Office intends to release people onto the street, presumably to save money on providing accommodation. Aside from the inhumanity and social impact, this is startlingly self-defeating as immigration policy. People who have been detained because the Home Office considers them at risk of absconding will be released into homelessness, making it difficult or impossible for them to keep in contact with the Home Office.
The Home Office guidance does seem to recognise the possibility of unwanted consequences of making people homeless. On a discretionary basis, officials will be able to grant addresses to ex-offenders whom they consider pose a serious risk to the public if left on the street, albeit generally only for 3 to 4 months. But otherwise, unless it would breach the prohibition on inhumane and degrading treatment, the answer will be the street.
But the problems don’t stop there. The Tribunal, sensibly, generally refuses to release migrants to no fixed address, not least because of the likelihood that they will not keep in contact. There are no indications that the change of Home Office policy has induced the judiciary to make such a radical shift. On the other hand, the policy guidance makes no provision for the Home Office to provide an address where required by the Tribunal.
Ironically, the same Act introduces automatic bail hearings in some circumstances for the first time. Will these bail hearings be meaningless for the many migrants without addresses?
In the meantime, we are speaking every day to anxious clients who want to apply for addresses. All we can tell them, for the moment, is that we are trying to find out what their options are.
The guidance signals a few other significant shifts. It appears that the Home Office plan to make more use of sureties for ex-offenders, previously used only in bail hearings in the Tribunal, and now known as ‘Financial Condition Supporters’. Ex-offenders will routinely be asked at the point of detention whether they have a Financial Condition Supporter who could guarantee a sum of money on their release. If they are released and go on to breach one of their conditions, the Supporter would forfeit the money – the guidance sets out how the Home Office will now go about collecting it.
The sole good news is the ongoing non-introduction of automatic electronic monitoring for all ex-offenders on bail pending deportation, a Conservative manifesto pledge from the last two elections. The guidance helpfully explains some of the difficulties involved: installation of the tags requires the person to be living at a suitable address, and can only be imposed alongside a curfew. They are working on a new technology that would presumably allow people to be tagged without an address or legal grounds for a curfew. However, devolution poses another hurdle, since people currently cannot be tagged in Scotland or Northern Ireland.
Finally, dystopian partisans of the dwindling independence of the judiciary can thrill to a brutal description of the procedures for the Home Office to consent (or not) to the Tribunal granting bail. If removal directions are in place and the Tribunal grants bail anyway, the Home Office Presenting Officer (who has just lost the court hearing) must phone a Home Office manager to ask whether they consent to the judge’s decision taking effect. As the manager ‘will not be familiar with the case’, the Presenting Officer is required to explain it carefully….