Blog post by Dr Jonathan Collinson (University of Huddersfield), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.

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Part of the UK government’s ‘New Plan for Immigration’ is the announcement of plans for ensuring that more so-called foreign national offenders are deported, and to disproportionately increase the penalty for re-entering the UK whilst a deportation order is in force. But ever harsher measures aimed at foreign national offenders are out of step with public opinion, which is more forgiving of foreign nationals who commit crimes than might be expected. Indeed, the New Plan for Immigration is out of step with a more nuanced view of foreign national offenders.  

 

Drawing on two academic articles I have (co-)authored on the subject, in this blog post I will outline two possible reforms to deportation law which would address some of the most harsh consequences of existing and proposed policy. The first is a way to ‘suspend’ deportation orders for a year to give foreign national offenders an opportunity to rebuild their lives in the UK and demonstrate that they are not a reoffending risk. The second, authored with Professor John Eekelaar, would be to either (a) exempt from deportation all foreign national offenders who arrived in the UK as children, or (b) exempt those who would be a British citizen but for the fact that they missed out on citizenship because they were a child when they first qualified for citizenship.  

 

A New Plan, But A Familiar Folk-Devil

 

The UK government’s announced New Plan for Immigration presents a series of proposals for changes to the UK’s immigration system, particularly aimed at restricting rights of asylum seekers, refugees and foreign national offenders. The published plans for asylum seekers and refugees have been criticised as being ‘incoherent, unworkable and inhumane.’ Criticisms of the plans to further target foreign national offenders for deportation and further criminalisation (by increasing the sentence for entering the UK whilst under a deportation order from six months to five years imprisonment) have been more muted. Foreign national offenders have always been a difficult group to be seen defending. They are thought to attract public revulsion rather than sympathy. Foreign national offenders have been described as a ‘doubly damned modern British folk-devil’: deserving deportation as both criminals and foreigners.  

 

However, academics, campaigners, and MPs across the political spectrum are increasingly questioning the label of ‘foreign national offenders’ and what that label should mean for those individuals. The public attention on the case of Osime Brown has challenged perceptions of the faceless ‘foreign national offender,’ and instead brought focus on the individual who stands behind that label.  

 

Foreign? Offenders?

 

UK deportation law states that ‘The deportation of foreign criminals is in the public interest’, so it requires deportation of an individual solely because they have been convicted of a criminal offence, but takes no account of the circumstances of the offence, nor of whether the individual continues to pose a risk to the public. Osime Brown’s case is a compelling example of the injustice of the blanket impulse to deport all those who have been convicted of criminal offences. Osime Brown was convicted under controversial joint enterprise laws and there is ‘no evidence he was [or is now] a threat to anyone in the UK.’  

 

However, if someone has committed criminal offences and served their sentence, are they still a criminal? Should a single offence be enough to lead to labelling a person as so inherently criminal that they must be completely removed from UK society? HM Prison Service states that its purpose is to help those sentenced to prison ‘lead law-abiding and useful lives, both while they are in prison and after they are released.’ Why should the fact that someone is ‘foreign’ and sentenced to prison make any difference to their treatment after their sentence is served? British citizens sentenced to prison are released back to their families and communities at the end of their sentence, free to live (it is hoped) law-abiding and useful lives. Foreign nationals are instead marked for deportation, and many are put in immigration detention immediately after their prison sentence. As one such detainee is recorded as saying: ‘My English friends, they did their time and now they’re out. But I’m in here. It’s not right.’  

 

Differential treatment between nationals and non-nationals is permitted by human rights law, but any such distinction must be necessary for ‘weighty and objectively justifiable reasons’, i.e. it must be proportionate. Determining proportionality includes a balancing exercise between the state’s interests and the individual’s rights. While under international human rights law, non-discrimination is not a right in itself, the right to private and family life is often engaged in deportation cases, particularly where the individual in question has a child in the host country. The Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact) emphasises that return procedures must include an assessment of the best interests of the child and take into account the right to family life (para 37(g)). Even if we are content that the deportation of some foreign national offenders is backed by sufficiently weighty reasons, deportation remains a sanction that can only be visited on foreign nationals. Depending on the circumstances of the individual case, deporting a foreign national offender may be disproportionate and therefore discriminatory.  

 

Finally, the conception that foreign national offenders are inherently ‘foreign’ is also increasingly coming under scrutiny. Osime Brown arrived in the UK aged four years old, others may even be born in the UK yet remain legally ‘foreign.’ Some may be related to victims of the Windrush scandal and so might be legally British citizens now if their parents or grandparents had not been historically failed by the UK’s immigration and nationality systems. Others have been in the UK so long that they are ‘indistinguishable from citizens’: part of British communities, workplaces, families; and who speak, think and act like British citizens, including those British citizens who sometimes commit criminal offences. As one individual labelled a ‘Foreign National Offender’ put it: ‘I’ve lived here since I was a kid. I did my GCSEs here. My family lives here. All them crimes, I did them here. All those drugs, I got into them here.’  

 

But UK immigration law does not properly recognise these nuances: nuances which the public are shown to reflect in their opinions on who should be deported. Instead, UK immigration law makes the demand that foreign national offenders should be deported except in very limited circumstances. The intractability of UK deportation law, and the unjustifiably harsh consequences that it metes out on individuals and their families, will only become more and more obvious as more EU-nationals come under the radar of UK immigration law.  

 

Two reforms to deportation law proposed in published in the academic papers mentioned above would mediate some of the most harsh of the UK’s deportation regime: (1) suspended deportation orders and (2) exemption from deportation on the basis that the individual in question would be a British citizen but for the fact of being a child when they first qualified for British citizenship.  

 

Suspended Deportation Orders

 

One of the problems with UK deportation law is that it recognises only two possible outcomes: to deport, or not to deport. This all-or-nothing outcome is unusual where the consequences for the individual are so great. For example, when a crime is committed there are a range of different kinds of sentences which can be meted out to best reflect the seriousness of the offending, existing criminal records, the likelihood of reoffending, and the circumstances of the individual. These range from conditional discharges, fines and community sentences to prison sentences.  

 

The problem with deportation hearings only having two possible outcomes is that the current exceptions to deportation have hard-and-fast lines for qualification. This results in examples where one individual qualifies for an exception but another individual, who is otherwise in substantially the same position, does not. For example, a foreign national offender will not be deported if deporting them would be ‘unduly harsh’ on a ‘qualifying child’. A qualifying child is one who is either a British citizen, or has lived in the UK for seven years.  

 

But it cannot be reasonably said that a child who has been resident in the UK for 2550 days (i.e. five days shy of the seven years residence requirement) is likely to experience the deportation of a parent less acutely than a child resident in the UK for 2555 days (i.e. exactly seven years). The qualification based on seven years residence applies to children born in the UK, so a six-year-old can never be a qualifying child, even if that child was born in the UK and has lived their whole life there. Hard-and-fast lines of qualification create injustices which judges cannot reflect because their toolbox is limited to all-or-nothing outcomes.  

 

The question of when deportation is ‘unduly harsh’ on a child is another kind of problem which only having all-or-nothing outcomes to deportation hearings means judges are ill-equipped to deal with. When is a deportation unduly harsh rather than simply just harsh? Given that reasonable people might disagree on what harsh means, let alone unduly harsh, it is impossible to give these terms comprehensive or objective definition.  

 

No judge would seriously claim infallible judgement over such imprecise questions. Having a third type of decision that they can make in deportation decisions would allow them to reflect the uncertainty inherent in the decision-making process.  

 

The suggestion of suspended deportation orders draws inspiration from a familiar fixture of criminal law: suspended prison sentences. Suspended prison sentences recognise that sending some people straight to prison is not always necessary, but that setting them completely free may also be unwise. Instead, a suspended prison sentence gives the offender a ‘chance to stay out of trouble and to comply with up to 12 requirements set by the court’ and face imprisonment for the first offence if they commit other offences.  

 

Suspended deportation orders would work much like suspended prison sentences. Where a judge is unsure as to whether deportation is ‘unduly harsh’ rather than simply harsh, or where hard-and-fast qualifying criteria are just missed, they can give the benefit of the doubt to the individual but to impose conditions which support rehabilitation and the prevention of further crime. It also works the other way, for example, where the decision-maker believes that the foreign national offender presents a substantive risk of further offending, and yet meets the statutory qualifying criteria for full exemption from deportation, the judge is able to reflect this concern by suspending the deportation order and imposing conditions, rather than cancelling it outright.  

 

Exempting those who arrive in the UK as children from deportation

 

Children have limited control over their lives, including where they live. They have no choice where they are born, and little or no choice to which countries they are moved to by their parents. Therefore, someone who arrives in the UK as a child did not choose to be put at risk of deportation as a further consequence of offending, nor could they be expected to have done so. The risk of deportation was simply put on them by the actions of others. This is a strong moral argument for exempting all those who arrive in the UK as children from deportation, which Professor Eekelaar compellingly makes. It is also a position that, perhaps unexpectedly, one that a majority of people in the UK agrees with.  

 

An alternative policy intervention would address some of the same issues, without going as far as exempting from deportation all those who arrived as children. This would be to exempt from deportation anyone who could have become a British citizen (and thus immune from deportation) but for the fact that they were a child at the earliest point at which they could have done so. However, this suggestion is very much a second-best alternative with significant blind-spots.  

 

There are significant legal and practical barriers to many children registering to become British citizens. Some forms of citizenship acquisition, such as naturalisation, are not even open to those under-18 years old. Children entitled to register for citizenship face substantial application fees, which in many cases their families simply cannot afford. And those legal routes to registration as a British citizen are automatically closed when a person becomes an adult, and so they miss out on citizenship at the point when they may finally have their own independence and income in order to apply.  

 

A ‘but for’ test for exempting foreign national offenders from deportation would cover those who missed out on British citizenship because (a) they are now adults but were not registered when their parent(s) became settled or British; (b) they would have otherwise qualified for naturalisation themselves but were legally excluded because they were under-18 at the time, or; (c) they would now not meet the good character requirement, but would have done so (and thus been entitled to citizenship) at the earliest point that they became eligible. A ‘but for’ test would recognise that the foreign national is only now ‘foreign’ – and therefore deportable – because they did not become a British citizen because of factors inherent to them being a child.  

 

Dismantle or reform?

 

The moral case for completely dismantling the current system of deportation of foreign national offenders is compelling, especially where the individual arrived in the UK as a child. The UK government has already once tacitly accepted this possibility by agreeing with the Jamaican government to remove from a deportation flight anyone who came to Britain as a child under 12 years old.  

 

The British public have more nuanced views on the fate of foreign national offenders than the government’s absolutist rhetoric and policy suggests. In a 2020 YouGov survey, ‘A majority of Brits (58%) say foreign-born offenders who have committed a serious or violent crime should not be deported if they came to the UK as a young child’. The survey suggests that a majority also oppose deportation for those who commit minor or non-violent crimes in most circumstances.  

 

But the survey also suggests that public are not ready to completely reject deportation as a practice, especially for serious offenders.  

 

Even though these published policy proposals swim against the tide of the New Plan for Immigration, they also do not go nearly far enough. However, practical policy proposals to reform deportation law may encourage further questioning of the assumption that deportation will unavoidably catch those who the public think of as deserving of exemption from deportation. Deporting all foreign national offenders regardless of their circumstances is not a natural and unavoidable consequence of having a deportation policy at all. The public clearly have a more nuanced view of foreign national offenders than the New Plan for Immigration gives credit to. The public do want to just see more deportations, but more just deportations based on the nature of their offending and the circumstances of their lives in Britain. Practical policy proposals that inject nuance back into deportation law therefore have value if they help facilitate this debate.    

 

 

References

 

• Jonathan Collinson, ‘Suspended Deportation Orders: A Proposed Law Reform’ (2020) 40 Oxford Journal of Legal Studies 291
• John Eekelaar and Jonathan Collinson, ‘A Fateful Legacy of Childhood: the Deportation of Non-citizen Offenders from the UK’ (2021, Forthcoming) Journal of Immigration, Asylum and Nationality Law

 

 

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