Still a struggle for justice: seven years of observing bail immigration hearings

Guest post by Bill MacKeith. Bill was president of Oxford Trades Union Council when Campsfield detention centre opened in 1993 and ensured that the Council backed the Campaign to Close Campsfield. He has worked over 35 years to end immigration detention, and has helped organise the Bail Observation Project since it started in 2010.

The UK operates one of the largest immigration detention systems in Europe, and unlike most other countries, has no time limit on detention. Over 20,000 people are held under immigration law in the UK each year. For over thirty years, campaigners across the country have been calling for the government to end its brutal detention regime.

The Bail Observation Project: background

In the early 2000s, members of the Campaign to Close Campsfield (now Coalition to Close Campsfield) visited people in the immigration detention centre near Oxford, and supported them as sureties (Financial Condition Supporters) in bail hearings. What they observed made them so concerned that they decided to demand improvements, but they lacked hard data to back up their contentions. The Bail Observation Project (BOP) was subsequently set up in 2010 to scrutinise the working of the principal avenue for a person detained to seek their freedom – that is to make a bail application to the First Tier of the Immigration and Asylum Tribunal (AIT).

Twenty local people were trained by Steve Symonds then of the Immigration Law Practitioners Association (ILPA) and a questionnaire was developed with the help of Bail for Immigration Detainees (BID). Over the next five years, BOP volunteers observed 330 bail hearings and published two reports. 

One of our key recommendations was and remains for more judicial oversight, including a hearing before a judge within 24 or 48 hours of the original decision to detain.

BOP was invited to join the stakeholder group of the AIT First Tier, in which it participated for some eight years alongside ILPA, BID and others, until the group was abolished.

After a struggle, some of our recommendations were secured:

• The judges’ reasons for refusal of a bail application are now typewritten. Previously they were often handwritten and illegible.
• From 2017/18 an audio recording of the entirety of proceedings became available to the principal parties.
• Training of judges has improved.

From its inception in 2010, BOP members were active in the Judicial Oversight Working Group of the Detention Forum, which comprises some 50 organisations and calls for an end to immigration detention. The Forum’s demands on judicial oversight of immigration detention overlapped with those put forward by BOP, and with those included in amendments to immigration legislation in parliament prepared by Detention Action. Despite progress in gathering support among parliamentarians, the amendments were not accepted or carried forward.

The third report: A different approach

BOP organisers decided to try to broaden the practice of subjecting the courts to greater public scrutiny. They approached university law faculties, and as a result, academics at four universities (City, Cardiff, Glasgow, Oxford) collaborated to encourage around 100 law students, along with others, to observe some 200 bail hearings and write up reports. Our third report, Immigration bail: Still a struggle for justice - Hearings observed 2016-23, is based on their work.

In the report, we highlight some recent observations. The first of these is that the voice of the applicant is often absent in the hearing room. In principle this is a problem although a lawyer, if present, can represent it.

To give an example of the experience of a person seeking bail, last November, Maggie Moyo, an organiser for These Walls Must Fall, spoke at the 48th demonstration outside Derwentside (formerly Hassockfield) detention centre for women in County Durham. She spoke of her own bail hearings where it was difficult for her to speak as a woman facing a judge, Home Office presenting officer, interpreter and lawyer who were all men. This was especially difficult for her, when asked to speak of her experience of rape and being trafficked, and when the failure to look a person in authority in the eye – which was the accepted custom for her – is judged as indicating an ‘unreliable witness’.

Legal representation at a hearing makes a big difference to the chance of success – our 2013 report found that the applicant with legal representation had a 500% greater chance of a successful outcome. But legal advice was often not available: a 2025 survey by BID found that just 38% of respondents had legal representation. And in many cases, even if legal advice is available, it is not of a sufficient standard to meet the needs of the client.

The latest report’s section on automatic bail hearings shows that these are 10 times more likely to be unsuccessful than other bail hearings, with lack of legal representation being a chief reason. They only take place after a person has been already detained for four months, which is too long. Time-served prisoners (foreign national offenders) are excluded.

For detention to be justified, deportation (or ’removal’) is supposed to be happening in the relatively near future. In 2019, City University students reported that the Home Office only argued that removal was imminent in 10 of 55 cases observed. It would seem that the judges have not taken any notice of this low rate.

Interpreting is so important and so often inadequate. The decline in interpreting services after privatisation has been well documented and we support the Professional Interpreters for Justice 2024 manifesto demand for a mandatory regulator. This is a case where public provision of the service is required.

Without public access to proceedings, our mission cannot be accomplished. Many groups and authorities have warned about the lack of public access to and scrutiny of courts of justice. Despite the welcome statement in 2024 by England and Wales Chief Justice Sue Carr, that “justice will not only be done, but will be seen to be done”, the County Court system was reported to be “failing” and “dysfunctional” last year.

Key developments: online hearings and increased success rates

In the first of two major developments, more than 95% of bail hearings are now online. This is arguably convenient for all parties (except the judge who is in court) as it eliminates long journeys.

But we see it differently. Our first two reports showed that if the person seeking bail appeared in person, they had a better chance of a success. We also believe that in general, a judicial hearing requires all parties to be present in the same physical space able to observe and eyeball one another.

Our latest report illustrates how online hearings exacerbate difficulties in hearing, interpretation, understanding, and communication in general, to say nothing of technical issues, and alienation from proceedings. (This is, however, notwithstanding the benefits of appearing at a distance for vulnerable parties such as children or victims of sexual assault.)

Secondly, since our earlier reports in 2011 and 2013, the rate of success in bail applications appears to have increased from around 25% to around 50%. This is the figure both nationally in 2023 and for all the hearings we observed in 2016-23. Nationally for 2023, if withdrawals are excluded, that figure approaches 70%. We can and should speculate about the causes for this, as it would be good to know what they are so we can reinforce them.

My own view is that the training of judges may have improved. During Covid-19, the detention regime was relaxed for medical reasons and the success rates for bail applications went sky high before reverting. The improvement appears to have occurred despite the negative impact of hearings being held remotely.

It is very good to see the appearance of new court-watching groups organised by Transform Justice for London magistrates’ courts and by others in the Family Courts. But with the near disappearance of local newspaper journalists to cover the work of the courts, the need for public scrutiny is greater than ever.

Read the full report, Still a Struggle for Justice: Immigration Bail Hearings Observed, 2016-23 written by Bill MacKeith, Bridget Walker, Dr Anna Lindley and Dr Clara Della Croce. Costs for printing the reports and were funded by Norda Trust, and all labour has been provided free.

About the other authors: Bridget Walker has a background in international development. She is on the steering group of the Quaker Asylum and Refugee Network and a member of the original Campaign to Close Campsfield and the present Coalition. She joined BOP its early stages and, with Bill MacKeith, co-authored its first two reports. Dr Anna Lindley is an academic in the Development Studies Department at SOAS, University of London, focusing on global migration and displacement dynamics, politics and experiences, including research on access to justice in immigration detention. Dr Clara Della Croce is Reader in law, SFHEA, and Clinical Legal Education and Pro-bono Director at the College of Law, SOAS, University of London. For the past 15 years Clara has worked with migrants in immigration detention and in prison.

Individuals and groups interested in taking forward the work of the Bail Observation Project are invited to email bmackeith@gmail.com. Current active groups are at Queen Mary, University of London and Oxford University.

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