Home Office accused of pressuring judiciary over immigration decisions

Home Office criticised for requesting written reasons from judges when bail is granted to detainees

The Home Office has been accused of interfering with the independence of the judiciary after it emerged that judges were asked to provide written explanations for a rise in the number of detainees released from immigration centres during the Covid-19 pandemic.

In a letter to the president of the Tribunal, Immigration and Asylum Chamber dated 29 April 2020, the Home Office’s head of appeals, James Stevens, wrote: “The numbers of those in detention have reduced very significantly since the start of this emergency.” He went on to say: “The Home Office is somewhat surprised at the level of grants of bail in recent weeks.”

Official figures record 1,225 people in detention centres on 1 January and 368 at the latest count – a reduction of almost three-quarters.

Stevens outlined the ways in which the Home Office had responded to the risks coronavirus posed to detainees, before adding: “Where bail is granted I would ask you to consider whether immigration judges could provide written reasons for this.” Judges are not required by law to do this.

Stevens wrote: “While I realise this is not a requirement under the procedure rules, it would assist the Home Office to fully understand the reasons why bail has been granted.”

The Home Office is supposed to detain only those it can deport imminently, and its ability to do this has been drastically reduced due to flights being grounded.

There have been three confirmed cases of Covid-19 among immigration detainees, and the risk of catching the virus remains high among those who are locked up for extended periods.

In a response dated 1 May, Michael Clements, the chamber’s president, issued a robust rejection of the Home Office’s request. “As independent judiciary we decide bail applications in accordance with the law, which includes the guidance which has been issued. There has been no change in either the law or the guidance,” he wrote.

“The primary function of detention is accordingly to facilitate removal, and unless there are very powerful reasons to the contrary bail should be granted if there is no removal of the bail applicant within the reasonably foreseeable future.”

He said that during the pandemic he had instituted a “minded to grant” bail process, giving the Home Office an early indication before a bail hearing took place that a judge was likely to grant bail unless the Home Office could provide specific reasons why this should not happen.

“Unfortunately, the feedback that I am receiving is not only that the Home Office rarely consent to the grant of bail having seen the ‘minded to grant’ but that bail is still opposed at the hearing without any meaningful additional representations being given.”

Pierre Makhlouf, an assistant director at Bail for Immigration Detainees, accused the Home Office of interfering with the judicial approach to bail applications because the rate of successful bail applications had shot up from its usual level of about 30%. He said 55 out of 58 cases where the charity provided representation since lockdown began had been granted bail.

Adrian Berry, the chair of the Immigration Law Practitioners’ Association, said: “It is not appropriate for government to use its position outside of the courtroom to seek to influence decisions. The separation of powers between the government and judiciary is a core constitutional principle.”

Bella Sankey, the director of Detention Action, which launched a legal challenge calling for the mass release of detainees during the pandemic, said: “This letter is a constitutional disgrace, entirely in keeping with a government that thinks it is above the law and not answerable to our sovereign parliament.

“That the Home Office has sought to pressure the immigration tribunal over its bail decisions during a global pandemic shows alarming disrespect for the right to liberty, the rule of law and the separation of powers.”

Toufique Hossain, of Duncan Lewis solicitors, who brought the Detention Action case, said: “Separation of powers is a basic principle of any democratic society to safeguard liberties and guard against tyranny.”

A Home Office spokesperson said: “This is completely untrue, and the Guardian knows full well that this letter is explaining transparently to the judiciary how we are responding to this pandemic, including carefully reviewing the cases of those in detention. The public expects law and order to be maintained, which is why 95% of those currently in detention are foreign-national offenders.”


Diane Taylor

The GuardianTramp

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