How could Britain deport more foreign offenders?

Spectator

3 days ago

Barely a week passes without headlines about the UK's ongoing issues deporting foreign national offenders (FNOs). Foreign offenders are estimated to make up around 12 per cent of the UK prison population and many are not deported upon release. While some stories may be exaggerated or misrepresented – such as the well-known case of an Albanian offender who initially avoided deportation due to his son's aversion to foreign chicken nuggets (a decision later overturned on appeal) – there's little doubt that the current system is both inefficient and somewhat unpredictable.
Despite claims that the deportation of FNOs is a government priority, recent statistics paint a concerning picture. According to data released in May, there are now 18,982 foreign offenders subject to deportation living 'in the community' after serving a prison sentence, up from 14,640 in 2022.
Under the UK Borders Act 2007, the Home Secretary must issue a deportation order for any foreign national sentenced to 12 months or more in prison. But there are a number of exceptions – particularly when deportation would violate the European Convention on Human Rights (ECHR), the UN Refugee Convention, or the Council of Europe Convention Against Trafficking in Human Beings. The Immigration Act 1971 also allows for the deportation of offenders with shorter sentences.
Prisons should refer foreign nationals receiving a custodial sentence to the Home Office for deportation consideration. But in practice deportation orders are often delayed until all appeal routes have been exhausted. Human rights appeals, especially under Article 8 of the ECHR (the right to family life), are one of the most common methods of contesting deportation.
According to the House of Commons Library, from 2008 to 2021, there were 21,500 appeals against deportation and 6,000 succeeded. Of the successful appeals, around 11 per cent were granted on human rights grounds, with most involving Article 8 (the right to family life). Critics suggest that rather too many cases are currently being treated as 'exceptional' by tribunal judges to prevent deportations.
Earlier this year, an Independent Sentencing Review by former Lord Chancellor David Gauke recommended that one solution to the question of FNOs (and our increasingly overcrowded prisons) would be to speed up deportations for those serving sentences of up to three years by initiating removal proceedings earlier – rather than waiting until half the offender's sentence had been served. Given the high rate of appeals, these proposals have been met with some scepticism.
The government has acknowledged the problem. In a June speech to European ambassadors, Lord Chancellor Shabana Mahmood committed to clarifying the legal framework surrounding Article 8, which she said is:
'Too often used in ways that frustrate deportation, even where there are serious concerns about credibility, fairness, and risk to the public.'
I have previously argued that we need clear, robust, statutory rules to fix these issues; however the precise details of the government's proposed reforms to the treatment of Article 8 of the ECHR remain vague.
Unsurprisingly, the failure to deport FNOs has been seized upon by some as yet another argument for the UK to leave the ECHR. But it's not clear that such a drastic step would solve what is, fundamentally, a problem of practical inefficiency as much as legal complexity.
One alternative worth exploring is changing how deportation orders are issued. Gauke noted that deportation can be seen as part of the punishment for criminality. If so, why not allow criminal courts to make deportation orders at the time of sentencing? A judicial role was originally envisioned under the Immigration Act 1971 – judges could recommend deportation when sentencing an offender – but has largely been superseded by the current system.
If FNOs were subject to deportation orders as part of their sentence, these decisions could be made as a judicial determination. The Home Office would not have to conduct its own investigation and it would be possible to exclude the immigration tribunal system entirely – potentially eliminating the drawn-out appeal process.
There's no legal or practical reason why criminal court judges couldn't make these determinations. Sentencing judges already weigh family life and personal circumstances when deciding on imprisonment. With robust statutory guidelines, automatic deportation should still apply to serious offenders, while allowing judges to consider any alleged exceptional circumstances at the time of sentencing.
Any appeals could be handled within the normal criminal appeals process, potentially reducing both the volume and duration of challenges. Judicial decisions made at sentencing should carry more weight and attract far fewer appeals.
Yes, the criminal justice system is underfunded and slow. But removing thousands of deportation appeals from the immigration tribunal system could free up significant resources to support this new approach.
At a time when the government is considering proposals for simpler, speedier justice (such as the removal of jury trials for certain offences), the same principles should be applied to the deportation of foreign offenders.