Commentary on provisions of the Act Section 13: Powers to grant immigration bail
This section amends Schedule 10 to the 2016 Act which makes provision for the grant of bail by either the Secretary of State or the First-tier Tribunal to persons in immigration detention. Sub-paragraphs (1) to (3) of paragraph 1 of Schedule 10 set out the categories of persons being detained or liable to be detained who may be given immigration bail. This section also makes provision to restrict the jurisdiction of the courts to review the lawfulness of a decision to detain under the new powers in section 11, or a decision by the Secretary of State to refuse bail under Schedule 10 to the 2016 Act where an individual is detained pursuant to one of the powers in section 11.
	Subsection (2) amends paragraph 1(1) and (3) of Schedule 10 to the 2016 Act so that those detained under new sub-paragraph (2C) of paragraph 16 of Schedule 2 to the 1971 Act (as inserted by section 11) and section 62(2A) of the 2002 Act also fall within the categories of detained persons who may be given immigration bail in accordance with the provisions in Schedule 10 to the 2016 Act.
	Subsection (3)(a) inserts a new sub-paragraph into paragraph 3(2) of Schedule 10 to the 2016 Act, setting out a further matter that must be considered by the First-tier Tribunal when considering the grant of immigration bail. That additional matter is whether the Secretary of State has a duty, under section 2(1) of the Illegal Migration Act, to make arrangements for the removal of the individual.
	Subsection (3)(b) inserts new paragraph 3(3A) to (3C) into Schedule 10 to the 2016 Act. The effect of new paragraphs 3(3A) is that the First-tier Tribunal may not grant immigration bail to a person detained under paragraph 16(2C) of Schedule 2 to the 1971 Act or section 62(2A) or (2B) of the 2002 Act until 28 days has elapsed from the date the person was first detained under those provisions. In the case of an unaccompanied child detained for the purpose of removal under paragraph 16(2C)(d)(iv) of Schedule 2 to the 1971 Act, or section 62(2A)(d)(iv) of the 2002 Act, the 28 day period is reduced to eight days. There is no automatic right to bail after the 28 day (or eight day) period, however after the 28 day (or eight day) period there will be no restriction on the ability of the First-tier Tribunal to grant bail. In considering an application for bail, the First-tier Tribunal is required to take into consideration the matters specified in paragraph 3(2) of Schedule 10; such matters already include the likelihood of the person failing to comply with a bail condition (bail conditions are specified in paragraph 2(1) of Schedule 10 and can include for example, a requirement that the person periodically reports to the Secretary of State or other specified person).
	Subsection (4) inserts new paragraph 3A into Schedule 10 to the 2016 Act, the effect of which is that during the first 28 days of detention an individual will have no ability to challenge their detention via the courts by way of judicial review, unless the challenge relates to grounds of bad faith or is made in such a procedurally defective way as to amount to a fundamental breach of the principles of natural justice. This applies in relation to decisions to detain under any of the powers in section 11, or in relation to a decision by the Secretary of State to refuse bail, where an individual is detained pursuant to one of those powers. During the 28-day period there will be no restriction on an individual’s ability to apply for a writ of habeas corpus (or the equivalent procedure in Scotland). There will also be no restriction on an individual’s ability to claim damages in relation to unlawful detention, for any time period, including in respect of the first 28 days of detention.