Legal Update: Immigration bail and 'no study' conditions

In January 2018 new provisions were introduced that affected children and young people who were in the UK but did not have "leave" (permission) to remain, including those seeking asylum who had not yet received a decision on their asylum claim. This resulted in a significant number of young people, including care leavers, being given "no study" conditions seemingly as a matter of course and without examination of their circumstances and the impact.

They were being left cut off entirely from education and, in some cases, social care support. Following concerns raised by charities and the media, and legal challenges, the Home Office revised its guidance in early May to make clearer who should be affected by these changes.

Immigration Bail

Schedule 10 of the Immigration Act 2016 made significant changes to the status of those without leave to enter or remain in the UK, as well as to detention powers. "Immigration bail" replaced several old kinds of status, including "temporary admission", which was previously given to asylum seekers entering the UK. The immigration bail provisions are retrospective and not only cover new arrivals, but also any other individual who is already in the UK but does not have leave to enter or remain.

An individual who does not already have leave and makes an asylum or immigration claim may receive ‘immigration bail'. They will be informed of this through letter called BAIL 201. This letter will contain information about why they have been granted ‘immigration bail' (e.g. asylum seeker) and will outline the conditions of their bail - things that the Home Office require them to do, or not to do. These can include asking someone to live at a certain address or report to the Home Office on a regular basis - often it will include prohibition on working (though in some cases permission to work could be granted). A young person may now also receive a condition allowing or preventing study.

‘No study' conditions

Study is defined for the purposes of immigration bail as "primary and secondary school for children and young adults up to and including the age of 18, and courses which may lead to a qualification for adults, including English for speakers of other languages courses". For children, Home Office guidance states that a child can lawfully access education until the age of 18. Children, including those who turn 18 in their final school year, should therefore be permitted to study.

Whether a study condition will apply to young people over the age of 18 will depend on their situation. For asylum seekers, the guidance states that a study condition should not be imposed.

For former unaccompanied asylum-seeking children who are care leavers, or other care leavers, the guidance states that study should be permitted until they have exhausted appeal rights. However, if they continue to receive leaving care support they should not be given a "no study" condition. For undocumented young people (defined as an "adult immigration offender" in the guidance), a no study condition will normally be imposed.

Removing a ‘no study' condition

It is still crucial that a person check the BAIL 201 letter they receive when reporting to the Home Office to check if they have permission to study or not. If there is a "no study" condition on the letter, they will need urgent advice. If a person already has a solicitor they should raise this issue with them as soon as possible. The Home Office has the power to both vary and change the conditions of "immigration bail", including a "no study" condition. They must consider a request to remove a "no study" condition and change where it is appropriate. They must tell the person when they agree with the request (with a new BAIL 201 letter) and when they refuse to allow permission to study. If they refuse the person will receive a BAIL 206 letter.