[noborders-brum] [Fwd: Special Bulletin about the deportation of foreign nationals and bail]
Shiar
shiar at riseup.net
Tue Jul 18 10:49:22 UTC 2006
---------------------------- Original Message ----------------------------
Subject: Special Bulletin about the deportation of foreign nationals and bail
From: "John O" <ncadc at ncadc.org.uk>
Date: Tue, July 18, 2006 1:34 am
To: Recipient List Suppressed:;
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NCADC News Service
==========
Special Bulletin about the deportation of foreign nationals and bail
Bail for Immigration Detainees (BID) is currently
receiving many questions from detainees about
detention and deportation (as is NCADC). Both
organizations have received enquiries from many
who have completed a criminal sentence but have
not been released at the end of their sentence.
This bulletin explains how someone so detained
can apply for bail to secure their freedom.
Bulletin can be printed off and posted to anyone
that is detained.
Part One (this section can be shown to the Judge)
Law and policy
The right to freedom is a fundamental principle
of the law in this country. The Immigration
Service, which is detaining you, has to give very
strong reasons to say that you have to be
detained.
You must be given reasons for your detention and
further reasons every further month that you are
detained. The initial reasons will normally be
given to you on Form IS91R and Monthly Progress
Reports on Form IS151F.
Deportation
Have you been given notice of intention to make a deportation order?
If you have been given notice of intention to
make a deportation order and you are waiting for
that order to be made, you can only be detained
where
a. your presence is not 'conducive to the public good';
b. you are recommended for deportation following
conviction for an offence by a criminal court;
c. you are the family member of someone who is,
or has been, ordered to be deported.
Have you been recommended for deportation?
If you have been issued by a criminal court with
a recommendation that you be deported, having
been convicted for a crime, you can only be
detained if the court has not made a direction
that you are released at the end of your sentence.
Is there a deportation order in force against you?
You may be detained while waiting to be removed
from the UK or waiting to leave the UK.
You can only be detained in accordance with law and policy:
The government's own policy in the Operational Enforcement Manual states:
"The following are normally considered suitable
for detention in only very exceptional
circumstances, whether in dedicated IS detention
accommodation or elsewhere:
* unaccompanied children and persons under the age of 18 [Š];
* the elderly, especially where supervision is required;
* pregnant women, unless there is clear prospect
of early removal and medical advice suggests no
question of confinement prior to this [Š];
* those where there is independent evidence that they have been tortured;
* people with serious disabilities."
You may not be detained for an unreasonable length of time.
o A High Court judge has said: "If it becomes
clear that removal is not going to be possible
within a reasonable time, further detention is
not authorised [Š] the person seeking to exercise
the power of detention must take all reasonable
steps within his power to ensure the removal
within a reasonable time."
* This means that you cannot be detained for an unreasonable length of time.
* The immigration authorities must act with
speed to ensure that the immigration action is
carried out within a 'reasonable time'.
* You can only be detained for as long as
reasonably necessary to carry out the authorized
immigration action (for example, deportation).
* If it appears that the immigration action
cannot be carried out within a reasonable time
(for example, you cannot be deported because it
is not possible for you to be returned to your
home country) then your detention will become
unlawful.
* If you know that you cannot be removed or
there are problems with removal to your country,
such as travel document delay, you cannot be
detained indefinitely. You should apply to the
Asylum and Immigration Tribunal (AIT) for bail
and read the BID special bulletins on travel
document delay.
Your detention may be unlawful if:
* Your detention does not comply with policy;
the effect on you outweighs the immigration
interest in detaining you; your detention is
arbitrary because the reasons for it are unknown
or not made public; your detention is based on an
inadequate or wrong assessment of the facts about
you; relevant circumstances have not been taken
into account.
* If your detention may be unlawful, you need to
seek the advice of a lawyer who can challenge
your detention in the High Court by judicial
review proceedings or a writ for habeas corpus.
Appeal against deportation:
BID cannot give advice on deportation appeals as
our focus is on helping detainees to apply for
bail. You will need a lawyer to assist you with
a deportation appeal. If you do not have a
lawyer, you should contact the Community Legal
Service helpline on: 0845 345 4 345
If you want to appeal against a decision to make
a deportation order, you can apply to the Asylum
and Immigration Tribunal for the following
reasons:
* The Home Office has failed to apply its own
rules or policy in the correct way.
* There are human rights reasons why you should
not be deported (including your family life and
the right not to suffer torture). Your family
life means your partner or children here, and
other factors such as your employment in the UK
can also be taken into account.
* If you have claimed asylum and removing you
would be against the Refugee Convention.
If a deportation order has already been made, a
lawyer may be able to help you to make
representations to the Home Office asking that
the order be revoked.
If the order is not revoked, you can bring an appeal.
Applying to an immigration judge for bail:
To challenge your detention, you need to apply
for bail to the Asylum and Immigration Tribunal
(AIT).
* In a bail application, the Immigration Service
has to convince the Immigration Judge that
detaining you is necessary.
* Detention is an infringement of the human
right to liberty and the Judge will have to be
satisfied to a high standard that any
infringement of that right is essential.
* 'The burden of proving that the presumption in
favour of liberty does not apply lies on the
Secretary of State. As detention is an
infringement of the applicant's human right to
liberty, you have to be satisfied to a high
standard that any infringement of that right is
essential.' These words are from the guidelines
for immigration judges considering bail -
paragraph 2.5 of the 'Guidance Notes for
Adjudicators on Bail. Third Edition May 2003'
++++++++++++++++++++++++++++++
Part Two. This section is to help you prepare
your bail application and is not for court.
What to do next
* Read BID's Notebooks on Bail - in the
detention centre library or contact BID or
download from:
http://www.ncadc.org.uk/resources/bail.html
* Prepare your statement for bail using the Guide below.
* Check with BID that this Bulletin is up-to-date before using it.
Guide to Writing a Statement to explain your Case
If you have no legal representation and you have
to go to court yourself, you will have to prepare
a statement for the Judge to consider. This is an
explanation of what should be in the statement.
Use separate paper to write a Statement using the
following headings as a Guide.
"I am making this bail application myself because
(explain why you have no lawyer). I do not want
to represent myself but I have no choice. I have
received some help from Bail for Immigration
Detainees (BID)."
My immigration history
* It is important to be brief at this stage. The
Judge dealing with the bail application will not
be looking at your main immigration case. The
Judge will only be looking at whether or not you
should be released on bail or detained. So the
Judge will not want to know, for example, the
details of why you fled your home country or the
details of why you applied to stay in the U.K.
My detention history
* Explain when you were detained and at which
centres including any periods of release.
The reasons why I should be given Bail
The main things you need to explain are:
* Why the immigration service is wrong to say
you will not keep in touch with the authorities
(why you will not abscond)
* Why you cannot be removed quickly.
These two points are the rules which the
Immigration Service have to prove to keep you in
detention. So to be released you have to explain
why the immigration service is wrong.
I will comply with any conditions which are set for me because
* Explain why you will comply with bail conditions.
* If you have previously broken any conditions,
why would it be different this time?
* Go through the list on page 30 of the Notebook
for Bail Part One and see if any of the list
applies to you. If it does then explain it here.
Information about my surety/sureties (if you have a surety/ sureties)
It is not a requirement by law to have a surety
to apply for bail. If you do have sureties,
there is a space for their details on the bail
form (Form B1)
* Explain the sureties' relationship to you.
Explain how long you have known the surety.
* What is each surety's immigration status?
* How much money is the surety offering and why are they offering that
amount?
* How often have you seen the surety - does the
surety come to see you in detention?
o Why will the surety be able to influence you to
keep in touch with the authorities?
Information about my accommodation
o Explain what you accommodation will be. Who is
providing this for you. If it is a friend explain
the friendship.
My comments on the bail summary (you will receive
this the day before the hearing)
* Go through the bail summary sentence by
sentence and explain why you do not agree with
the immigration service
It is important to explain in detail everything
in your favour. For example, if you have fully
co-operated with the Immigration Service and the
Home Office, explain how you have co-operated.
____________________________________________________
further information see:
"The Deportation of Foreign Nationals factsheet"
by Brenda Campbell, Louise Hooper, Duran Seddon,
Maya Sikand, Mark Symes, Ronan Toal - Garden
Court Chambers May/June 2006. Can be downloaded
from:
http://www.ncadc.org.uk/resources/foreignNats.html
BID is grateful to the barristers of Garden Court
Chambers for their assistance with this bulletin.
End of Bulletin:
Source for this Message:
--
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Disclaimer
Please note: NCADC does not provide 'Immigration
Advice' as defined in section 82, Part V of the
Immigration and Asylum Act 1999, such advice is
subject to regulation by the Office of the
Immigration Services Commissioner (OISC).
Therefore the contents of this message should
under no circumstances be seen as 'Immigration
advice'.
If you are looking for legal advice relating to:
The contents of this message
A substantive asylum claim,
Application to appeal,
Application for bail,
Removal or deportation from the UK,
Application for judicial review,
Application or variation of entry to the UK,
Making a fresh asylum claim.
Nationality or citizenship application,
Admission to the UK under Community law,
or any issues relating to immigration/migration:
You need to seek the advice of an immigration
solicitor or registered immigration advisor.
All information on our website or information
distributed by email is for 'Sign posting' only.
To remove your address from this mailing list return a blank message to:
unsubscribe at ncadc.org.uk
and in the subject line put: Remove
========================
National Coalition of Anti-Deportation Campaigns (NCADC)
1 Delaunays Road
Manchester
M8 4QS
General enquiries 0121 554 6947
ncadc at ncadc.org.uk
http://www.ncadc.org.uk/
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