Proposals by the Bail Observation Project to the Asylum, and Immigration Tribunal
about training of First-tier Tribunal Judges relating to bail hearings
Purpose: increase fairness and justice at bail hearings (items in italic we think particularly significant).
- Training and guidance
In particular, reference to the Guidance (2018) at all times.
* Presumption of liberty as described in the guidelines.
* Requiring documentary evidence for bail summary assertions.
* Obligation to create a balance when applicant is not represented, including enabling questioning and support/guidance from the FtTJ.
* Requiring evidence that alternatives to detention have been given full and proper consideration.
*Applying Guidance concerning proof of imminence of departure and availability/possession of travel documents.
*Not insisting on sureties as a matter of course. Sureties are not essential.
*Guidelines for FtTJs to be benchmark for decision making.
*Being up to date on country information particularly regarding safety of return.
* Monitoring of FtTJs’ performance at bail hearings as routine. Perhaps creating inspectors who can observe things (unannounced).
*Health issues including mental health and significance of reports.
* Giving more weight to independent evidence, including medical, and to effects of continued detention on mental health of detainee and welfare of his/her family.
*Giving more weight to the issue of length of detention.
- Improving conduct of hearings
There are some important points arising from experiences in the two surveys of, in total, 335 bail hearings BOP has carried out.
*Check the applicant has read and understood the bail summary. Essential for an unrepresented applicant to conduct their case. This may involve ensuring applicant receives bail summary in appropriate language if first language not English.
*Ensure applicant has understood what is happening at every stage especially when there is an interpreter.
*Ensure all proceedings are interpreted to applicant where interpreter needed and not simultaneously with the case proceeding. This was a frequent occurrence during our observations
*Allowing applicant time to speak, challenge or respond even where represented.
* FtTJs allowing the family and all sureties into the court for the entire hearing unless there are specific reasons particular to the case which applicant may challenge.
*Treatment of all sureties should be with courtesy, respect and without taking advantage of their lack of knowledge of the legal system. Our observers detected a deterioration in the standard of treatment of sureties by both HOPOs and FtTJs in our second survey.
*Make more frequent use of Guidance provision concerning grant of bail in principle.
Issues which would improve justice and fairness for applicants
Our system is weighted against the applicants without legal help and also with even a modest grasp of English. (E.g. What provision is there for the unrepresented applicant to understand the bail summary if his/her English is not of a good standard?)
*Time allowed (10 minutes) for legal representative to interview applicant before hearing doubled if an interpreter needed and increased further if there is a family (multiple) bail application.
* Private space must be available for pre-hearing meetings. We have noticed some have been conducted in busy public spaces.
*Improving the understanding of the state of mental health of applicants who have experienced trauma, resulting in PTSD. See note below for details of excellent training on these matters.
It may be useful in Guidance to give examples of behaviour that judges consider is evidence that the applicant is lying/his or her evidence is to be considered as unreliable, or, conversely, that it may be believed (Rule 35).
Title of training run by Dr Jane Herlihy, chartered clinical psychologist, director of the Centre for the Study of Emotion and Law.
Description of this ILPA course intended for immigration lawyers and caseworkers:
“This course will present and discuss various psychological reasons why some asylum seekers have particular difficulties in presenting their case. We will present the latest research findings that help elucidate some of the psychological processes at work. We will encourage discussion of the ways in which these findings can help legal representatives to better inform and support clients going through the asylum system. Finally we will consider some of the effects that working with traumatized clients can have on us, both professionally and personally.”