The topic of detention can be complicated and divisive in the area of immigration law in the United Kingdom. Detainees frequently find themselves in a vulnerable and unclear situation as they wait for the results of their immigration status. Concerns have been expressed about the well-being of those held in immigration detention facilities, their access to quality healthcare, and their capacity to engage fully in judicial procedures.
I often see immigration practitioners are not well acquainted is the bail application, where the detainee’s mental health state is a key factor in assessing whether they are eligible for release. I have personally dealt with many many detention cases where upon evaluation by an independent medical expert they found out my clients were suffering from PTSD to various other mental health conditions. In these reports generally, the medical expert would dedicate a section providing their evaluation of the risk of self-harm, and the number of reports I have seen where the risks were medium to high was baffling and concerning.
If you have practised long enough I have sure you have had clients who tried to harm themselves in the detention. If not at least I bet you have heard of many cases of suicide and suicide attempts in these immigration removal centres. As lawyers, we have to act in the best interest of our clients and this also includes being mindful of their mental health condition. While you do not need to play the role of a medical expert but if you come across signs that the client showing signs of mental health condition, you souled always suggest them they talk to their detention officer and also suggest they have their mental health condition evaluated by an independent expert.
When individuals with mental health conditions are detained, their circumstances may warrant special consideration in the bail application process. Mental health conditions can significantly impact a person’s well-being, rendering detention facilities inadequate for providing proper care and exacerbating their condition. Therefore, demonstrating the impact of the mental health condition on the detained individual becomes crucial when applying for immigration bail.
I want to shed light on how immigration bail is changing in the UK, especially as it relates to the detainees’ mental health, by exploring these issues. I hope that this article will be a useful tool for lawyers navigating the intricate relationship between immigration detention, bail proceedings and mental health.
Important Factors to Take into Account When Requesting Immigration Bail Due to a Mental Health Condition:
Expert medical opinion: It is crucial to get a full medical evaluation from a licensed mental health expert. An accurate diagnosis, a description of the condition’s severity, and a discussion of potential hazards related to detention should all be included in this evaluation. The impact of detention on the person’s mental health and the requirement for receiving suitable therapy and support should also be covered in the report.
Evidence of Inadequate Support for Detention Facilities: It is essential to compile documentation showing the detention facility’s inadequate mental health services and the possible harm they pose to the person. Reports, testimony, or occurrences that are documented might be used to demonstrate how poorly the facility is providing for mental health needs.
Supportive Documentation: Adding more evidence to the bail application that backs up the applicant’s claims, such as medical records, psychiatric assessments, and expert testimony, can help. The relationship between the mental health problem and the requirement for adequate care outside of a prison setting should be made explicit in these documents.
Accommodation and Support Network: Make the argument for granting bail stronger by proving that appropriate accommodations and a support network will be available after release. Access to mental health treatments, family or community support, and treatment plans are a few examples of this.
I am sure most immigration and human rights lawyers are more or less acquainted with the process of applying for immigration bail. In this article, I will not write much about the process of making an SSHD bail or IAC FtT bail application. Instead, I focused on how to highlight the mental health aspect of the bail application.
How to apply for bail
- Make immigration bail applications to the Secretary of State using form BAIL 401
- Make immigration bail applications to the First-tier Tribunal using form B1
Some relevant and useful cases
- R (Das) v Secretary of State for the Home Department [2014] EWHC 3462 (Admin): This case recognised that the mental health condition of an individual can be a relevant factor in determining whether detention is lawful and proportionate. It emphasised the importance of considering the impact of detention on an individual’s mental health and the availability of appropriate treatment.
- R (Kaur) v Secretary of State for the Home Department [2018] EWHC 2048 (Admin): This case highlighted the duty of the Home Office to consider mental health issues in immigration detention cases. It emphasised that the Home Office should not detain individuals whose mental health conditions are likely to deteriorate significantly or where there is a lack of appropriate care available.
- R (SSHD) v Lord Chancellor [2019] EWHC 3162 (Admin): This case recognised that the availability of suitable mental health treatment in the community can be a significant factor in determining whether continued detention is lawful and proportionate.
The power to grant immigration bail
Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber) provides:
Para 9: The power of the First-tier Tribunal to grant immigration bail is contained in paragraph 1(3) of Schedule 10 of the Immigration Act 2016. A person detained under the provisions listed therein can be granted immigration bail either on application by that person or by reference by the Secretary of State.
Para 10: When exercising the power to grant immigration bail, the Tribunal must have regard to the matters listed in para 3(2) of schedule 10. These are:
- The likelihood of the person failing to comply with a bail condition,
- Whether the person has been convicted of an offence,
- The likelihood of a person committing an offence while on immigration bail,
- The likelihood of a person’s presence in the UK while on immigration bail causing a danger to public health or being a threat to the maintenance of public order,
- Whether the person’s detention is necessary for that person’s interests or the protection of any other person, and
- Such other matters as the Tribunal thinks relevant
Important consideration
Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber) para 7 provides: It is generally accepted that detention for three months would be considered a substantial period and six months a long period. Imperative considerations of public safety may be necessary to justify detention over six months.
In the next para 8, it provides: Judges should be slow to interfere in cases where a person is detained for the expedited examination of an immigration application, such as a protection claim, where detention can be shown to be necessary and justified and there is no reasonable alternative. However, judges should not tolerate delays in such actions.
So in practice, it is possible that the client’s detention has not reached 3 months or 6 months. Therefore, as per the guidance it has not been a substantial or long delay. However, the client is suffering from a mental health condition. Therefore, we can apply for bail and ask the judge to grant bail despite the fact that it has not been a substantial or long delay, based on the mental health condition. Also, submissions related to mental heal conditions are likely to be taken into account while considering the bail conditions.
