"Control your emotions": immigration bail hearings and the role of the cautioner

In this post, Susannah Paul and Daniel Ferguson blog about the Immigration Bail Observation Project Scotland and the new resources they have developed to assist people acting as 'cautioners' for bail applicants.

In the year ending in June 2016, 31,596 foreign nationals entered immigration detention in the United Kingdom.  As long as they meet a few basic requirements, each of these people is entitled to apply for immigration bail under UK law.  Immigration bail is the temporary release of a person from immigration detention for a specific period of time, conditional on their compliance with certain requirements.  To apply for bail, a person in detention normally contacts the First Tier Tribunal.Between October and December 2015, the Immigration Bail Observation Project Scotland (‘IBOPS’) collected data on a total of 89 bail hearings conducted at the Tribunal in Glasgow.  We think this was the first observational study of immigration bail hearings to be conducted in Scotland, where the application process differs in some key respects from the rest of the UK.  Once analysed, IBOPS data revealed a number of problematic issues with the Scottish immigration bail process.One notable issue was the ‘cautioner’s’ involvement in the process.  A cautioner is a person who knows the bail applicant and who undertakes to the Tribunal that they will encourage the applicant to follow their bail requirements if they are released.  The cautioner will normally deposit a sum of money (a ‘bail bond’) which they might lose if the person released on bail fails to follow certain conditions.IBOPS research has shown that applicants with cautioners are twice as likely to be granted bail when compared with applicants without cautioners (44% as against 22%). Unfortunately, the IBOPS observations also shed light on the fact that bail hearings can be emotionally challenging and difficult for cautioners.In one case an observer noted that the Home Office Presenting Officer accused the cautioner of being in a sham marriage with the applicant. Some observers noted that it sometimes appeared that the cautioners were on trial when they were being asked questions by the Home Office Presenting Officer.One observer noted that in one case the hearing judge told the cautioner:

“control your emotions… it damages your credibility”

It was also noted during the observations that cautioners were not always fully aware of the bail process. This is not surprising given the lack of information available on the topic of bail, especially bail procedure in Scotland.Following on from the IBOPS research, with funding from the University of Glasgow Settlement and the AHRC Researching Multilingually at Borders Project, we spent this summer making a leaflet and guide that explain the practical and legal factors that are central to cautioners’ involvement in the bail process.We hope that these simple and practical explanations of their role will assist in addressing uncertainties and may enhance cautioners’ performances at the hearing. We also hope that the resources may be used by people in detention to help inform themselves and their prospective cautioners about the positive impact they can have on the hearing.