EXAMINING THE UK’S CURRENT APPROACH TO THE DEPORTATION OF FOREIGN NATIONAL OFFENDERS WITH LONG TERM RESIDENCE. DOES DEPORTATION IN THE UK AMOUNT TO “DOUBLE PUNISHMENT”?
May 2022
In accordance with the non bis in idem principle, an individual can only be punished once for a crime they have committed. Under Article 4 of Protocol 7 of the ECHR, “no one shall be liable to be tried or punished again under the jurisdiction of the same state”[1] for an offence for which they have already been convicted. However, looking at the UK’s law on deportation regarding foreign nationals, we can see that this principle is not respected. Under UK Immigration law, if a foreign national with long residence has been convicted of a crime and is sentenced to more than 12 months, they are subject to automatic deportation. A foreign criminal is defined as a person who is “not a British citizen, who has been convicted in the UK of an offence…who has been sentenced to a period of imprisonment of at least 12 months,”[2] has committed an offence that caused “serious harm,”[3] or is a “persistent offender.”[4] Despite the fact that they have often lived most of their lives in the UK, they are seen as other in the eyes of the law as they are not UK citizens - and are therefore treated differently, in a discriminatory way.
This essay will argue that the UK’s current approach to the deportation of foreign national offenders clearly amounts to double punishment. It will first do so by arguing that the individual has already served their punishment in prison – and that any further measure is a second punishment. It will discuss the harsh impact deportation has on an individual and their families, and how this constitutes a punishment. The essay will then argue that deportation is a punishment as it is not a preventative matter and there is no evidence it does much for the ‘public good,’ which the government claims. It will also discuss the general harsh attitude towards FNOs, including the previous ‘deport first, appeal later’ approach, ‘Operation Nexus’ and how difficult it is to challenge deportation.
The deportation of FNOs is clearly a double punishment, as the individual has already served a punishment for the offence they committed. However, the government has claimed that deportation is a procedural administrative matter, as opposed to a criminal punishment – and therefore not a double punishment. This seems convenient as therefore, an FNO’s Article 6 right to a fair trial and proper procedures, and the Article 7 right to no retrospective criminal punishment don’t apply. However, this is clearly a criminal punishment, and as mentioned in Uner v Netherlands [2005], deportation constitutes a penalty that is “as severe as imprisonment, if not more severe.”[5] Deporting an individual to another country they have not lived in for many years completely changes the course of their life. Many haven’t even visited their country of origin since they were young, and do not have social ties, family life, understanding of the culture, or sometimes even the ability to speak the language well. A Jamaican FNO with a 2-year old child, being deported for drugs offence, argued that he did not know his country of origin - having done “nursery, reception, primary, and secondary school in England.”[6] He stated he hadn’t been on a plane or left the UK since he was two. This can be incredibly difficult and traumatic to adjust to and can result in a poor quality of life. For example, several Zimbabweans who were deported in 2021 were found to be sleeping on the streets.[7] It also separates families, and even more cruelly, section 3(5)(b) of the Immigration Act 1971 allows families of FNOs to be deported. So not only is the offender punished, but so is their family, who have committed no crimes.
Furthermore, deportation is not the only measure taken. On top of being removed from the UK, if they have been sentenced to less than 4 years, they may not make an application to enter the UK for a prescribed period of 10 years. If they were sentenced to more than 4 years, they may never be allowed to apply for re-entry. This further supports the point that the deportation of FNOs is a double punishment. Not only have they served prison time for their crime, but they are removed from the UK and sent to their country of origin, which they are often not familiar with, and must wait at least 10 years to be able to return. It seems, therefore, that if an individual was sentenced to 3 years and was deported without permission to enter for 10 years, that they are in fact receiving 13 years of punishment.
Secondly, in justifying the deportation of FNOs, there is much talk of the ‘public interest’ and ‘public good.’ S.32(4) of the UK Borders Act 2007 states that “for the purpose of s.3(5)(a) of the 1971 Act, the deportation of a foreign criminal is conducive to the public good.”[8] New family and private life rules introduced in 2014 also outline that deporting those sentenced to more than 4 years is in the public interest. However, the deportation of FNOs is simply a punishment – as there is no proof that it does achieve anything for the ‘public good.’ As pointed out by Lord Kerr in Ali v Secretary of State [2016] the public interest is multi-faceted, with many different factors and elements “contributing to the positive development of our society.”[9] There is a public interest in keeping families together, encouraging and valuing individuals who bring something to the community, rehabilitating offenders, and prioritizing children’s welfare.[10] This is an incredibly important point – many individuals, though having committed a crime, have families that need them and many have a chance at getting back on the right track and contributing to society. Nurturing family ties can even better motivate someone and increase their prospects of rehabilitation. On top of this, just because an individual has a criminal record doesn’t mean they pose a threat to society. As of 2021, 13% of the total UK prison population were FNOs.[11] They by no means constitute the majority of offenders, and therefore any negative effect on the ‘public good’ does not seem to be more significant than the UK prisoner population.
Another point to consider is that the stated aim has been to deport those who are guilty of serious crimes, such as rape and murder, and are therefore a danger to society.[12] The Home Secretary has described those being subject to deportation as serious criminals. However, many who are deported have committed more minor crimes – such as dangerous driving. It must also be kept in mind that the legal system is not infallible – and some may be wrongly convicted. An incredibly problematic aspect of the law is that what offences the Secretary of State considers to have caused ‘serious harm’ is at their discretion. It is possible for an FNO to fall under this category even if they have not been convicted of any offence causing serious harm. For example, they may have been convicted of a “lesser offence because it cannot be proved beyond reasonable doubt that they were guilty of a separate offence in relation to serious harm.”[13] This is shocking – in our society, we are innocent until proven guilty, according to our Article 6(2) right under the Human Rights Act 1998. If a court of law decides it cannot convict someone of a serious crime beyond a reasonable doubt, then they are legally not guilty of this offence. However, the Home Secretary is essentially able to decide that they are, in fact, guilty. This seems to completely disregard an FNO’s Article 6 right and therefore, their human rights, and seeks to punish them simply because they are not UK citizens – which is blatantly discriminatory.
Deporting all foreign nationals who have been charged with certain crimes without giving them a second chance or truly considering their families’ and children’s best interests is unfair and discriminatory. It must be mentioned that courts have considered the idea of public interest, and consideration of its strength in relation to the individuals’ life has been reduced in certain cases. For example, where the individual was born in the UK and has never left.[14] However, there is still a clear, discriminatory grouping of FNOs together as a threat to the ‘public good.’ Each individual and their offence will have their own unique circumstances, and simply deporting them all under the guise that they are ‘serious criminals’ is not only untrue, but unjust.
Furthermore, the deportation of FNOs is not an effective preventative measure, which is another argument made by the government. There is no evidence to show that deporting FNOs achieves anything in crime prevention. It is clearly not an efficient preventative measure – and instead seems to be an excuse. In Ali v Secretary of State for the Home Department [2016] Lord Kerr acknowledged that historically, reasons for deportation have been to prevent offending, deter others from offending, and express revulsion for an offence. However, he argues that societal disapproval of a crime “should be expressed through… the appropriate penalty.”[15] In other words, if expressing revulsion for a crime is intended, why not just sentence an offender to a longer, but still proportionate, sentence? He also states that there is “no rational basis for expressing additional revulsion on account of the nationality of the offender,”[16] and that doing so would be “contrary to the spirit of the convention.”[17] If deporting criminals was truly in the public interest, why wouldn’t the law address all those who have committed crimes? Punishing someone twice simply because they are foreign is not justifiable, but this is what the UK’s current approach to the deportation of foreign nationals is doing.
Additionally, the deportation of FNOs does not even achieve anything for migration prevention. There is no indication that foreign nationals are less willing to migrate to the UK due to fear of being deported if they commit a crime – deported FNOs only tend to be a small percentage of foreign nationals. If anything, it may be argued that sending individuals who have been living in the UK for a long time and potentially have no links with the country they are being sent to may even encourage illegal migration. Those who have been sent away may attempt to come back to their familiar life in the UK. Unfortunately, there is not much research on this at present.
We can observe the UK’s past harsh treatment of FNOs through the deport first, appeal later approach introduced by the Immigration Act 2014. Though this was held to be unlawful, it clearly shows the ruthlessness of UK deportation law regarding FNOs. S.94B allowed the Secretary of State to allow a deportation before an individual’s Article 8 appeal had been heard, on the ground that doing so would not breach the ECHR and appealing from the outside would not lead to serious or irreversible harm.[18] However, the serious or irreversible harm test was a very high test, which was un-empathetic and difficult to meet. Simply because appealing from the outside would not result in serious harm does not mean it would not be an extremely difficult and traumatic situation for the individual. Kiarie v Secretary of State for the Home Department [2017][19] highlighted a few of these issues. Firstly, it was incredibly difficult for individuals to prepare their cases from outside the UK – due to lack of money, resources, perhaps no access to legal aid or lawyers, and potentially not even speaking the language well. Additionally, where the impact on children needed to be analysed, how could this be done if the children were not with the parent? This would result in the evidence someone was able to present being weak. Since a court hearing in regards to deportation heavily depends on credibility, individuals deserve to be given a fair chance and attend these hearings in person. No provisions and measures had been put in place to enable appellants to effectively appeal from abroad, and the court therefore held that the appellant’s “ability to effectively present his appeal against a deportation order was obstructed by the requirement of bringing it from abroad.”[20] Therefore, this was an interference with their right to respect for private and family life in the UK, and their right to challenge breaches of their rights.
We can clearly see, today, that the UK does not particularly value FNOs’ safety and clearly attempts to get around human rights law, to serve one goal only: punishment. Often, FNOs are at risk of harm in their country of origin, and the government must adhere to its obligations under Article 3 of the ECHR[21] and Article 3 of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment[22] - which prohibit deportation if it would result in the FNO being subject to torture, inhumane or degrading treatment, or punishment in this state. The case of Chahal v United Kingdom[23] held that the deportation of a Sikh separatist who had been tortured in the past would violate his Article 3 rights, as he was at risk of further harm if returned. This resulted in the government being unable to deport terrorists at risk of torture in their country of origin. To get around this legal obstacle, the UK implemented a deportation with assurances (DWA) policy – for FNOs suspected of terrorism, which it negotiated with 6 countries – Jordan, Libya, Lebanon, Algeria, Ethiopia and Morocco. This involved the assurances that deported individuals would be protected from harm, and have access to basic needs such as medical treatment, accommodation and adequate food, in a way that adheres to “internationally accepted standards.”[24] However, as pointed out by human rights campaign group Liberty, “diplomatic assurances are inherently unreliable.”[25] They are not a reliable indication of “whether the risk of torture is eliminated.”[26] This is true, considering many countries have signed human rights treaties or claim to adhere to them when in reality, they do not. Negotiating and agreeing on assurances with countries that are known for violating human rights through the use of torture and other methods is morally wrong, and unlikely to be successful. It seems to simply be a way to get around the law and respecting FNOs human rights, without actually ensuring that this is truly efficient. Therefore, FNOs are subject to a prison sentence for their offence, deportation which affects their families and quality of life, refusal of entry for a certain number of years, and sometimes even harm in their country of origin.
The lack of care and empathy toward FNOs is also highlighted through the problematic ‘Operation Nexus.’ This was created with the aim of “more effectively tackling offending by FNOs.”[27] It claims to include identifying those in the UK lawfully, whether EU nationals or not, whose conduct “merits their removal or deportation,”[28] and has also included cases where intelligence has shown the individuals’ involvement in serious crimes. However, the ‘intelligence-led removal’ aspect has been heavily criticized, as many argue that it has allowed individuals to be removed or deported with no actual criminal convictions, simply due to “untested police reports”[29] or behaviour that resulted in a criminal charge but not conviction. Again, this contrasts the stated aim of removing serious offenders, for the public good – and instead seems to be simply targeting non-UK nationals for being foreign.
Another point that supports deportation being a punishment is how increasingly difficult it has become to challenge it. Those convicted to more than 1-4 years imprisonment must show that they fall under one of the exceptions to deportation. Those who have served sentences longer than 4 years, or don’t fall under an exception, must show ‘very compelling circumstances’ that result in their case outweighing the public interest. This includes “the full spectrum of Article 8 issues.” However, the bar has been raised when it comes to what can outweigh the public interest. There is, essentially, the presumption that a person sentenced to more than 12 months and not falling under an exception will be deported – unless they can show exceptional, very compelling circumstances. Because of this, as stated in SSHD v CT (Vietnam) [2016], the comparison does not begin at a neutral starting point – the “scales are heavily weighted in favour of deportation.”[30]
Furthermore, in considering the public interest and weighing it against the FNO’s Article 8 rights, the court will look at the effect of the deportation on the FNO’s partner or children. The problematic aspect is that the test is whether the effect on them would not just be harsh, but ‘unduly harsh.’ There have been conflicting interpretations of this test. KO (Nigeria) set out the test as being one “looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.”[31] This position has been controversial and discussed in many consequent cases. In the case of PG (Jamaica) it was suggested that “emotional harm alone may never be enough to satisfy the test.”[32] These approaches highlight the cruel attitude towards FNOs, requiring more harm and hurt to be caused to them than the average individual in order to satisfy the test. Even when it comes to children and the harm they suffer being separated from a parent, the law remains cold. It truly seems as though everything is being done to ensure FNOs are deported, without the chance to stand up for themselves and their families’ rights. UK Immigration law is sending the message that they want FNOs gone, closing the door on any hope of fighting their removal and potentially coming back. This shows a deep lack of empathy and the aim to punish them for having committed a crime within the UK – without giving second chances.
Considering all of this, it can be said that the deportation of FNOs is a double punishment. The harshness of this law is not proportionate to the aim pursued, and there is a clear double standard between FNOs and UK nationals. It may even be argued that in the current climate, where a lot of the public’s political discussion revolves around foreigners, migrants, and protecting the borders, one may say the severity of deportation law regarding FNOs is a nod toward the public opinion and serves a political purpose. Deportation is a cruel, significant decision that often shatters theirs’ and their families’ lives and is a clear double standard in comparison to the law regarding UK offenders. It is also not a preventative measure as there is no evidence to show it works effectively towards the ‘public good.’ All of these arguments establish the fact that the deportation of FNOs constitutes a double punishment - it is therefore difficult to justify its purpose, and consequently, its existence.
[1] European Convention on Human Rights, Protocol 7, Article 4
[2] Immigration Act 2014, s.117(D)
[3] Ibid.
[4] Ibid.
[5] Uner v Netherlands (46410/99) 45 EHRR 14, [2005] 3 Fam CR 111, [2007] Imm AR 303, [16]
[6] 'Outcry Over Plan To Deport Jamaican Nationals Who Came To UK As Children' (The Guardian, 2021)
[7] May Bulman and Nadine White, 'Zimbabweans Recently Deported From UK Now Homeless On Eve Of New Home Office Flight' (Independent, 2021).
[8] UK Borders Act (2007), s.32(4)
[9] Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, [168]
[10] Ibid.
[11] Ministry of Justice, ‘Offender Management Statistics Bulletin, England and Wales,’ Quarterly: October to December 2020, and Annual: calendar year 2020, 2021
[12] Terry McGuinness, Hannah Wilkins, | ‘Deportation of Foreign National Offenders Briefing Paper’ | House of Commons | 2019
[13] Home Office Guidance, ‘Criminality: Article 8 ECHR Cases’, Version 8.0, 2019
[14] Akinyemi v Secretary of State for the Home Department (No 2) [2019] EWCA Civ 2098
[15] Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, [168]
[16] Ibid.
[17] Ibid.
[18] Certification under section 94B of the Nationality, Immigration and Asylum Act 2002, Version 8.0, (Archived in 3 August 2017)
[19] Kiarie v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380
[20] Terry McGuinness, Hannah Wilkins, | ‘Deportation of Foreign National Offenders Briefing Paper’ | House of Commons | 2019
[21] European Convention of Human Rights (1953) Article 3
[22] UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1987), Article 3
[23] Chahal v United Kingdom (App No 22414/93) [1996] 1 BHRC 405, ECHR case 15/11/1996, 23 EHRR 413, 18 EHRR CD 193, Reports 1996-V p. 1831 , 108 ILR 385, [28/11/1996] TLR 2
[24] 'Bound Volume Hansard - Westminster Hall Debate' (Parliament.uk, 2006)
[25] Terry McGuinness, Hannah Wilkins, | ‘Deportation of Foreign National Offenders Briefing Paper’ | House of Commons | 2019
[26] Ibid.
[27] Home Office, The Home Office response to the Independent Chief Inspector’s report ‘An inspection of Immigration Enforcement activity in London and the West Midlands (‘Operation Nexus’), 4 December 2014
[28] Ibid.
[29] Terry McGuinness, Hannah Wilkins, | ‘Deportation of Foreign National Offenders Briefing Paper’ | House of Commons | 2019
[30] The Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488
[31] KO (Nigeria) and Others v Secretary of State for theHome Department [2018] UKSC 53, [2018] 1 WLR 5273
[32] Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213
Bibliography
Online:
'Bound Volume Hansard - Westminster Hall Debate' (Parliament.uk, 2006)
'Outcry Over Plan To Deport Jamaican Nationals Who Came To UK As Children' (The Guardian, 2021)
Bulman M, and White N, 'Zimbabweans Recently Deported From UK Now Homeless On Eve Of New Home Office Flight' (Independent, 2021)
Certification under section 94B of the Nationality, Immigration and Asylum Act 2002, Version 8.0, (Archived in 3 August 2017)
Legislation:
European Convention on Human Rights 1953
Human Rights Act 1998
Immigration Act 2014
Nationality, Immigration and Asylum Act 2002
UK Borders Act 2007
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987, Article 3
Caselaw:
·Akinyemi v Secretary of State for the Home Department (No 2) [2019] EWCA Civ 2098
·Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, [168]
·Chahal v United Kingdom (App No 22414/93) [1996] 1 BHRC 405, ECHR case 15/11/1996, 23 EHRR 413, 18 EHRR CD 193, Reports 1996-V p. 1831 , 108 ILR 385, [28/11/1996] TLR 2
·Kiarie v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380
·KO (Nigeria) and Others v Secretary of State for theHome Department [2018] UKSC 53, [2018] 1 WLR 5273
·Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213
·The Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488
·Uner v Netherlands (46410/99) 45 EHRR 14, [2005] 3 Fam CR 111, [2007] Imm AR 303
Reports:
Home Office Guidance, ‘Criminality: Article 8 ECHR Cases’, Version 8.0, 2019
Home Office, The Home Office response to the Independent Chief Inspector’s report ‘An inspection of Immigration Enforcement activity in London and the West Midlands (‘Operation Nexus’), 4 December 2014
House of Commons Home Affairs Committee, ‘The Windrush Generation,’ Sixth Report of Session 2017-19, 3 July 2018
Ministry of Justice, ‘Offender Management Statistics Bulletin, England and Wales,’ Quarterly: October to December 2020, and Annual: calendar year 2020, 2021
Prime Minister’s Office, The Queen’s Speech 2019: Background briefing notes, 19 December 2019, p 84
Terry McGuinness, Hannah Wilkins, | ‘Deportation of Foreign National Offenders Briefing Paper’ | House of Commons | 2019