When should a foreign offender be deported? The government’s new policy is that foreign offenders should be deported immediately after conviction, rather than after having served some fraction of a sentence of imprisonment imposed by a court. The measure is framed as ‘radical action’ to strengthen border security and to fix the broken criminal justice system, with the Justice Secretary promising that new legislation will ensure that deportations happen ‘earlier than ever before’. She says that ‘Our message is clear: if you abuse our hospitality and break our laws, we will send you packing’.
What the government is proposing is simply to let foreign offenders walk free without punishment
This is an Orwellian inversion of the truth. Deporting foreign offenders before they serve their prison term is not tantamount to depriving them of the privilege of a university place or a private hospital bed. What the government is proposing is simply to let foreign offenders walk free without punishment. The new policy is intended to apply not only to foreign offenders yet to be sentenced but also to all foreign offenders already in prison, who make up 12 per cent of the prison population. If Parliament enacts legislation to this effect, it will constitute the most far-reaching amnesty in modern British history.
This policy will create perverse incentives, radically reducing the risks to which foreign criminals are exposed in our country. The government’s policy is now to assure foreign criminals that they will not be punished for serious offences they commit in Britain, short of murder and terrorism. Such a policy will encourage foreign criminals to choose Britain as a place to do business. This new policy will also gravely wrong the victims of the foreign offender, who are entitled to be outraged if their assailant or predator escapes punishment because of his nationality status.
Deporting a foreign offender immediately would certainly be ‘earlier than ever before’. The problem is that it would be too early. The government’s new policy abandons the British state’s responsibility to impose just retribution on those who commit offences, whether citizen or foreigner. It is unjust to make punishment turn on nationality status in this way and it would amount to a renunciation of the equality before the law that is fundamental to the ideal of the rule of law.
Legislation has yet to be tabled, but it seems the policy will apply to all foreign offenders who have been sentenced to imprisonment. They are to be deported before having served any period of their sentence, with exceptions only for those convicted of terrorism or serving a life sentence, such as for murder. Bizarrely, it seems that prison governors will be empowered to block deportation on a case-by-case basis, ‘where there is clear evidence a prisoner is planning further crimes against UK interests such as posing a threat to national security they will not be released.’
It remains to be seen whether the government will ever take the ‘radical action’ required for deportations to be carried out routinely, rather than to be frustrated by human rights litigation. This new policy may in the end simply provide foreign offenders with the option of a taxpayer funded flight home before they have served any part of their sentence of imprisonment.
In May, the government accepted the recommendations of the Independent Sentencing Review, led by David Gauke the former Lord Chancellor, that offenders be released after serving a third of their sentences and that foreign offenders be deported after they had served 30 per cent of their sentence. The Gauke Review reasoned that deportation was itself a punishment and recommended further that foreign offenders sentenced to three years or less should simply be deported.
But deportation is not a punishment. Foreign offenders are not somehow subject to double punishment by virtue of serving their time and then being deported. All foreigners are subject to immigration law and are so liable to removal quite apart from conviction for any crime. In being removed from the country, they are not being punished, even if of course this may be hard treatment that the foreigner very much wishes to avoid. If removal were a form of punishment, then foreigners would be entitled to even greater procedural protection in relation to removal proceedings. The government cannot possibly say that foreign offenders have been punished sufficiently for their crimes simply by being removed from the country.
The Gauke Review at least limited its recommendation to relatively short sentences, reasoning that in such cases deportation was punishment enough. The government’s policy has no such limitation. Why should anyone accept that deportation is an adequate substitute punishment for any term of imprisonment, whether one year or 30 years? It would be a different matter entirely if the government had arranged for a foreign offender to serve out his sentence in his home country, but the new policy is not conditional on such arrangements being in place.
Justice requires punishment. The offender deserves to be punished, regardless of his nationality or entitlement to remain in the UK. The foreign offender who is imprisoned in a British prison, for committing crimes within our jurisdiction, is not depriving a British criminal of his rightful place. If a foreigner on our shores rapes someone or deals drugs, for example, he should be imprisoned – and then swiftly deported once he has served his time.
This government routinely congratulates itself on the priority that it gives to the rule of law. The self-congratulation was never warranted, as Policy Exchange has shown, but this new policy shows it to be false. The rule of law cannot be reconciled with a policy whereby a judge’s decision to sentence a convicted criminal to serve a term of imprisonment, as the just punishment for his crime, is set aside because the offender is a foreigner. Making some foreign offenders serve their sentences, when the Secretary of State or a prison governor sees fit, compounds the arbitrariness. Deportation of foreign offenders is a matter of high public importance, but Parliament and the public should firmly reject the government’s proposal to give up on punishment.
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