Fit for Purpose?

The release of prisoners at the end of their sentence seems, to the uninitiated eye, a fair and just conclusion of their encounter with the criminal justice system. The scandal that broke towards the end of April, which resulted in the removal of one Home Secretary and a wholesale condemnation of the Home Office as ‘not fit for purpose’ by his replacement, illuminates the double jeopardy principle which sharply discriminates against foreign prisoners by enabling them to be deported in addition to serving the sentence imposed for the crime.

The Immigration Act 1971 allows the Secretary of State to deport foreign nationals (including EC citizens), either on the recommendation of a judge after conviction of an offence punishable by imprisonment, or on his own initiative (whether or not the person has been convicted of an offence) on the grounds that his or her deportation is conducive to the public good. Amid all the outcry about foreign prisoners, the fairness or correctness of the double jeopardy principle has not been called into question – in fact, the Prime Minister and his new rottweiler at the Home Office seek to extend its application. The result has been the reinforcement of popular racist stereoptypes equating ‘foreigners’ and ‘asylum seekers’ with ‘criminals’, and the subjection of many fully rehabilitated ex-offenders to arrest for deportation, or to recategorisation within the prison system.

On 25th April 2006 Home Secretary Charles Clarke revealed in a written statement that 1,023 foreign nationals had been released between February 1999 and March 2006 on completion of their sentences without being considered for deportation. On 23rd May, in a further written statement, his successor John Reid indicated that the total of ‘missed’ foreign prisoners was in fact 1,019, of whom 186 had been convicted of serious offences. Clarke’s April statement released a storm of ill-informed and hysterical media coverage which fanned the flames of popular racism. The Daily Mail screamed: "Killers, rapists, paedophiles... 1,000 convicted foreign criminals who should have been deported are at large – and the Home Office hasn’t a clue where they are." (Reid’s later statement indicated that of the 37 who had been convicted of ‘most serious’ offences, including rape, child sex offences, murder and manslaughter, he said, 27 were in prison. Eight had re-offended (but only six convicted), but there were no re-convictions for violent orsexual offences among this group, although 13 of the 149 ‘more serious’ offenders had committed violent or sexual offences following their release.) Even the Guardian referred in its 26th April story to ‘more than 1,000 foreigners who … should have faced deportation’ after serving their sentence, when the issue was the failure to consider them for deportation action. In later stories it referred to the foreign ex-offenders as being ‘on the run’, as if they had escaped from prison.

It may well be appropriate to criticise the Home Office for its failure to consider foreign offenders for deportation, through administrative oversight. But it rapidly became an issue about the failure to deport them. Thus on 2nd May, Clarke told MPs that over half of the cases which Home Officials had missed had now been considered, and that a decision to deport had been made in respect of 446 cases. But Clarke was doomed for his perceived softness, and was reshuffled out of his job three days later. A memo from Prime Minister Tony Blair to Clarke’s successor John Reid, released to the Observer (14th May) complained about the judges’ failure to take adequate account of victims of crime in their interpretation of the European Convention of Human Rights, and indicated that it might be necessary to amend the Human Rights Act so that foreign criminals could be deported. A few days later, Blair told the Commons that he would press ahead with plans to deport "the vast bulk" of foreign prisoners after their sentences, regardless of the threat they might face in their home countries. "There will be an automatic presumption to deport... and those people... should be deported irrespective of any claim that they have that the country to which they are going back may not be safe".

Since the Prime Minister’s remarks, John Reid has indicated that he is prepared to be ‘radical’ in order to convince the public (by which he means the Daily Mail) that the government is tough on foreign criminals. In addition to reforms to the Home Office bureaucracy so as to ensure that foreign offenders are properly identified in the prison system, his 23rd May statement indicated that "all decisions on deportation [will now be] made according to the most robust interpretation of the requirements of our international obligations". As part of the prioritisation of cases according to the degree of risk posed to the public, he announced that:

"The Home Office will now consider for deportation all non-EEA nationals who have received 12 months prison sentence, either in one sentence or as an aggregate of two or three sentences; the decision-making criteria of the rules, which go wider than the requirements of the ECHR, will be interpreted much more tightly."

Current criteria for deportation

No automatic presumption to deport would be held lawful, never mind the breach of the ECHR obligations which would be involved. The Court of Appeal gave guidance to judges on when a recommendation should be made over 25 years ago, a long time before the ECHR was incorporated. In R v Nazari, it held that in deciding whether to recommend deportation, the court must consider whether the accused’s continued presence in the UK is to its detriment, taking into account the seriousness of the offence, the harm caused to the community by it and the risk of further offences. The sentencing court was not concerned with the political system in the receiving country or what the offender’s life would be there; that was for the Secretary of State in considering whether to give effect to the recommendation, but it must have regard to the effect of any recommendation on innocent third parties.

The power to deport EU nationals and their family members may only be exercised, according to EC law, if their conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Those who have the right of permanent residence can be deported only on serious grounds of public policy or public security, and after ten years’ residence, can be deported only on imperative grounds of public security.

As for the provisions of the immigration rules on the criteria for deportation, they have been the same since the 1970s. The factors to be considered by the Secretary of State in deciding whether to exercise the power to deport, including the offender’s age, length of residence and strength of connections with the UK, personal history including character, conduct and employment record, domestic and compassionate circumstances, the previous criminal record and nature of the offence, and any representations received on the person’s behalf. In 1986 the House of Lords held in R v Secretary of State for the Home Department ex p Bakhtaur Singh that the Secretary of State and the appellate body had to take all relevant circumstances into account including the impact of the person’s removal on others (family, employers and community).

It is noteworthy that for over thirty years the Secretary of State and the courts have accepted that consideration of deportation should look at the person and his or her circumstances fully, in the round. Any attempt to impose automatic deportation, even for serious offences, would not only depart from this clearly beneficent and fair limitation to the double jeopardy principle, but would seriously distort the balance required by Article 8 ECHR in cases where the deportee has family in the UK, and would result in many more applications to the Strasbourg court, which in a series of clear decisions from the early 1990s onwards, has set clear limits on the double jeopardy principle, recognising in particular that integrated aliens should not normally be deported except for very serious criminality.

Concern had already been expressed by lawyers, before the foreign prisoners row blew up, that the Court of Appeal has, in R v Nelson Carmona, diluted the stringent requirements of EC law, allowing sentencing judges to deport EU nationals committing several minor criminal offences. Judges are required to assess significant risk of serious harm in other contexts, such as in deciding whether to impose a mandatory sentence for the protection of the public, under the new provisions of the Criminal Justice Act 2003,12 and the test for deportation should, we suggest, be equally stringent, given what is likely to be at stake.

The effects on the ground

On 5th June, Langstaff J ordered the Home Office to release a British citizen who had been detained for deportation to Bangladesh in the wake of the foreign prisoners scandal. Although the man has a British passport, which was seen by immigration officers who searched his home and arrested him, the Home Office refused to release him without a court order. Their decision said that his offence of conspiracy to rob made his removal from the UK necessary for the prevention of crime and the protection of health and morals. The letter noted that his family came from Bangladesh and could return with him if they did not want to be separated from him.13 According to the press report, five more British citizens had been rounded up for deportation. British citizens of foreign origin in the prison system have also found themselves recategorised with a view to deportation.

In such cases, the Home Office is forced to act by the courts, since British citizens cannot be deported by law. But most of those who have been rounded up have no such protection, not being British, since they are legally liable to deportation. They have to persuade an Asylum and Immigration Tribunal that they should be allowed to stay.

One of these is Ernesto Leal, a Chilean refugee who came to the UK with his family in 1977, when he was thirteen, and was given permanent residence rights. On 1st May, 30 police officers arrived at Leal’s Stoke Newington home to serve him with a decision to deport him to Jamaica, and took him to Belmarsh maximum security prison. In 2002, following a brawl in a bar, he was sentenced to 42 months for GBH with intent. He served 18 months, mostly in an open prison, and on release complied meticulously with the conditions of his licence and started to get on with his life. Now, after 29 years in the UK, he faces deportation for a one-off, out-of-character offence in an otherwise law-abiding and productive life.

On 31st May, the Guardian reported another such case, that of Antonio Guarita, a 44-year-old Portuguese man who had rehabilitated himself after a three-year sentence for robbery. Guarita worked with a homeless charity and had just got a full-time job with the charity and his own flat, and was about to receive an adult learning award, when he was sent back to prison pending a decision to deport him.

Sentenced prisoners are categorised for security purposes when they first enter the prison system, and thereafter security categories are regularly reviewed. Those in open prisons were categorised as the lowest security risk, category D. Now, many are being recategorised upwards as prisoners who cannot be trusted in open conditions.

At least 200 foreign prisoners have been moved from open to closed prisons since the scandal broke. In mid-May, according to the Guardian, 300 prison officers in riot gear rounded up 141 foreign prisoners at Ford open prison in Sussex and taken them to closed jails, following the escape of 11 foreign prisoners in two weeks. A Prison Reforms Trust spokesman said that the escapes from Ford may well have been provoked by the fear of deportation. Thirty foreign prisoners were also transferred from Latchmere House resettlement prison, outside London, to closed conditions. At least two judicial review challenges have been lodged in response to the sudden recategorisation, on proportionality grounds. It would clearly be wrong to recategorise a prisoner solely in response to a media panic.

The real scandal

There is a real scandal in the Home Office’s treatment of foreign prisoners, but it doesn’t make the headlines. It is the weeks and months which many foreign prisoners serve in immigration detention following their release date, when so far as the prison is concerned they are free, but they remain detained under Immigration Act powers pending deportation. Frequently, their detention is unlawful, since the Secretary of State has given no consideration to whether to deport them or not, and there have been a number of successful challenges by way of judicial review, in cases where no reasons have been given for continued detention following expiry of sentence. A 2004 report by the Prison Reform Trust concluded that the main problems of foreign prisoners in this situation were lack of information, the language barrier and a sense of isolation. More seriously, the report found there were significant causes for concern relating to mental health, racism and disrespect. Applications for parole, for transfers to lower category prisons or to immigration detention, or release on licence often took months to process.

The Guardian’s Eric Allison revealed that out of 4,000 staff at the headquarters of the Prison Service, the National Offenders Management Service and the National Probation Directorate, just three were responsible for dealing with all foreign national prisoners – estimated at oneeighth of the prison population, over 10,000 people. For Kingsley Williamson, a prisoner awaiting deportation in Norwich jail following open conditions at Hollesley Bay for the last few months of his sentence, it became too much; he hanged himself on 14th March. And on 10th June, Oleksiy Baronovsky, a 34-year-old from the Ukraine, died in HMP Rye Hill in circumstances suggestive of suicide. Baronovsky had served a seven-year prison sentence for burglary and had been granted parole, but was detained beyond his release date under Immigration Act powers pending deportation. The government’s determination to remain one step ahead of the Mail in punitive authoritarianism will certainly give rise to more despair and more suicides.

Garden Court Chambers has produced a cross-disciplinary fact sheet on the deportation of foreign nationals, with contributions from specialists in criminal, immigration and prison law, to enable lawyers to respond to clients’ predicaments. Following an open meeting on the deportation of foreign nationals on 7th June, a steering group was set up to coordinate a response. Contact Louise Hooper for details at louiseh@gclaw.co.uk

Frances Webber

This article can be found in the print edition of Socialist Lawyer 44, where it includes footnotes