Being refused immigration bail can be one of the most frustrating decisions in the life of a foreign national in the UK.
With no legal upper time limit for detention, the Home Office can and does detain individuals for months and years on end until a court orders their release.
A bail application is a key opportunity to demonstrate to a Tribunal that you are a trustworthy individual who will obey the law.
Unfortunately, many bail applications are made in haste and without proper preparation which can only mean one thing: you will not be coming home as planned.
Furthermore, if you are refused bail, you are prohibited from making a further bail application within 28 days unless there has been a change in circumstances.
During this time, you remain vulnerable to the Home Office speeding up its own efforts to remove you from the UK.
It is therefore critical that bail applications are prepared thoroughly and that you get it right the first time round.
What is a Surety?
Successful bail applications often involve having sureties who can vouch for you.
It’s all about Trust.
Sureties are essentially friends or family who are willing to come to the hearing and persuade the judge that you are someone who should be trusted.
The level of trust that they have is measured by how much they are willing to lose if you abscond or fail to comply with your bail conditions.
Each surety will have to make a legally binding promise to the Tribunal that if you do not comply with your conditions, they will pay a certain amount of money to the Tribunal. This can often be in the hundreds or thousands.
I often find sureties shocked that they have been rejected as suitable sureties despite their promises.
So why are they rejected?
1. Being Unprepared
Sureties will be asked a number of questions aimed at establishing their suitability.
Some of the questions that judges may ask them at the hearing are:
- Their relationship with you
- How long they have known you
- Whether they are aware of your immigration and/or criminal history
- Whether you took any steps to help them regularise their stay or comply with previous conditions
- What steps they will take to help ensure that you will not abscond or commit further offences
- What they will do in the event that you do abscond or fail to comply with the conditions
It is worthwhile submitting a letter or statement from the surety before the hearing addressing the above points in advance.
If this is not possible, the surety should at least have thought about how he or she will answer these questions.
2. Appearing Last Minute
The Home Office will want to conduct background checks on each surety regarding their own immigration and criminal history and to see if they actually live where they claim they are living.
The Home Office require 48 hours notice before the hearing to do this and therefore anyone simply turning up on the day wanting to be a surety is likely to be rejected.
3. Providing Incorrect Details
In order for the Home Office to do their checks properly, it is important that the personal details for each surety submitted with the bail application are correct.
This includes their name, address, and date of birth.
I was once forced to withdraw what would have been a successful bail application after the Home Office objected to the surety’s first name being misspelled on the application form.
Due to a typo, the surety named Maryanne had her name entered as ‘Mary Anne’ with the Home Office persuading the judge that they were unable to do a proper check on her.
Ironically, after bail was granted a week later after the spelling was corrected, the judge made the same typo on the release form naming the surety as ‘Mary Anne’!
4. Not Providing Adequate Documents
It is not enough for a surety to simply promise to pay a certain amount of money.
They will need to prove that they have sufficient savings or a regular income of a sufficient level to make good their promise if necessary.
Sureties should bring with them to the hearing their last three months of bank statements, savings books, payslips as well as photo ID such as a passport or driving license.
The statements should show consistent available balances in excess of the sum offered, preferably over a period of 6-8 weeks.
Single bank statements, recent or historic bank statements are usually not sufficient.
Being overdrawn and having an overdraft facility will not be accepted.
Having consistently a lesser amount in the bank than that offered will not do.
Having consistently a lesser amount in the bank than that offered, followed by a recent upward spike in the balance to equal or exceed the amount offered, is not likely to be acceptable.
This last point is quite important as many sureties believe that simply having a friend deposit large sums of money into their bank account prior to the hearing will suffice.
It will not.
The judge will want an explanation for any such deposits and if you cannot provide a reasonable explanation, it is likely to be rejected.
5. Having a Criminal Record
A surety with a criminal record is not likely to be able to persuade a judge that you should be trusted.
The judge will first need to be convinced that the surety should be trusted!
It is critical that you ask anyone proposing to be a surety whether they have any previous criminal history as it is likely to come up which will prove both problematic for you and embarrassing for them.
It is best not to use a surety with a criminal past unless the convictions were such a long time ago as to now be spent.
Withdrawing a Bail Application
While it is frustrating when a surety is rejected and often tempting to continue with the application regardless, it is often the wrong thing to do.
It is almost inevitable that your application will be refused and most judges will give you an indication of that beforehand.
In such circumstances, it is best to withdraw the application and use the opportunity to correct the mistakes that have been made and submit a fresh application.
If you proceed and bail is refused, not only will this jeopardise any future applications, but you will also be prohibited from making a further application within 28 days unless you can show a change of circumstances.
This will give the Home Office more time to obtain the paperwork they require to remove you from the UK.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at firstname.lastname@example.org or submit your details here.