A foreign national offender is anyone remanded or convicted of criminal charges who does not have an absolute legal right to remain within Britain. The case is referred to the Home Office who considers whether to deport the person.
Deportation Order:
A deportation order is "an official document requiring a person to leave the United Kingdom and authorises their detention until they are removed". Deportation serves the public good where the individual has received a jail sentence of 12 months or more, convicted of an offence that is serious harm and is a repeat offender. Serious harm accounts to physical, psychological, emotional or economic harm to another person. In receiving a deportation order, the immediate family may also be deported unless they have settlement.
The Law:
Under the UK Borders Act 2007 a non-British citizen will be automatically considered for deportation if they are convicted of a crime and their jail sentence is for at least 12 months. A foreign criminal has been defined under Section 32 as:
"a person who is not a British Citizen, convicted in the UK of an offence and either sentenced to a term of imprisonment of 12 months or more, or a term of imprisonment of any length if the offence is classified as serious".
Article 8 of the European Convention of Human Rights serves as a basis for an exception to deportation under Section 33(2)(a) of the Borders Act. Article 8 equates to respecting private and family life. The offender must be able to show that their circumstances fall within specific exceptions set out in the UK Nationality Immigration and Asylum Act 2002.
Part 13 of the Immigration Rules state that a deportation order requires a person to leave the UK and authorises the persons detention until removal. Once removed from the UK, the person may no longer to be permitted to re-enter for a long period of time. The three circumstances where a person can be deported: for public good, spouse or child of a deportee, and where a court recommends for the deportation.
Determining deportation:
The principle of non-refoulement is a significant consideration for deportation. The deporting state must ensure that no one is deported to a country where they are at risk of being subjected to torture or other ill treatment. This can be reflected under Article 3 of the European Convention of Human Rights. It was decided by the European Court in, Chahal v The United Kingdom, that a person may not be removed to their home country where it is "likely there will be a breach" of the prohibition of torture under Article 3. The principle will not apply when the refugee poses as a danger to the security of the country or is convicted of a particular serous crime.
Conservative Government:
Under Priti Patel as Home Secretary had proposed amendments to cut the 12 month requirement to allow for deportation after a 6 month sentence. Crimes like this do not have victims or cause significant harm, with the threat posed to those in the community being low rates. Minnie Rahman (public affairs and campaigns manager at The Joint Council for the Welfare of Immigrants) stated that the governments response should not make it easier to deport people "whose rights are being violated" through denial of legal rights. Deportation is a public safety measure which should only be implemented as a final resort and not an automatic legal outcome. The intention of the legislation was to make it easier to deport those convicted of minor offences. An example that caused public outcry was the injustice deportation of Osime Brown who was convicted under joint enterprise with no evidence of him being a threat to the general public. Followed by Rishi Sunak ruling for Conservative government, he had vowed to double the number of foreign criminals deported.
Early Removal Scheme:
The Criminal Justice Act 2003 introduced the early removal scheme for foreign national prisoners. Allows for fixed-term foreign national prisoners confirmed by the Home Office Immigration Enforcement to be liable to removal from the UK, removed from the prison at the earliest stage of release. The Nationality and Borders Act 2022 amended Sections 260 and 261 of the Criminal Justice Act 2003 to increase the window to 12 months before earliest release point.
Challenging the deportation decision:
There are circumstances that enable you to challenge the Home Office's decision. These relate to application of Article 8, compelling circumstances, child of British citizenship, or in a genuine relationship who is a settled British citizen.
If the deportation decision is rejected the individual has the chance to challenge this. Limited circumstances include a person has been granted pre-settlement or settled status under the EU settlement scheme or they have a valid EUSS family permit, otherwise human right grounds apply.
Applying for judicial review means you are challenging the legal basis for the decision to deport you. It can only operate on grounds that it is clear that there is an unlawful deport.
Foreign offenders in the prison system:
HMP Huntercombes Independent Monitoring Board said Ministry of Justice and Home Office delays has led to significant issues. The prison has housed foreign nationals since 2012. The vast majority of prisoners in this prion are eventually deported to their country of origin. Concern has been raised due to around 17 prisoners in 2022 had finished their sentences but were held under convicted criminal conditions. There is a significant negative impact upon the individuals as well as families as a result of this. The number of deportations relating to foreign national prisoners has increased: almost 50,000 offenders have been deported between 2010 and 2020. It is found that foreign national offenders make up around 11% of total prison population in 2019, 1/3 convicted for violent or sexual offences and 1/5 for drug charges. There are only two foreign national offender only prisons in the UK located at Huntercombe and Henley on Thames. Nations with the largest number of citizens in the UK prisons are Polish and Albanian.
Polish and Albanian offenders:
In July 2022 the UK Government had removed 23 foreign criminals on a charter flight to Poland. The offenders had recieved a combined prison sentence of more than 66 years and were convicted of crimes including: rape, arson, assault and burglary. Priti Patel as Home Secretary had released a statement that "we are continuing to remove foreign criminals and those with no right to be here, as the public rightly expects". But does all the public expect deportation? However, the removal flight was conducted in cooperation with the Polish government and removed those with no right to remain in the UK.
However, more recently in March 2023 the prime ministers had discussed in 10 Downing Street that all eligible Albanian prisoners are to be deported. In December 2022 more than 40 Albanian criminals and migrants who had tired to renter the UK via boat was put onto a removal flight. 32 of those offenders had been sentenced to a combined total of 89 years in prison for offences including the supply of class A drugs and facilitating illegal entry into the country.
As of March 2023 the Home Office has returned more than 320 foreign criminals and immigration offenders with no right to be in the UK as part of efforts to 'stop the boats'
With the next Legal Thought,
Elicia Maxwell
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