Why it’s difficult to deport foreign offenders

Kicking foreign prisoners out isn’t – and shouldn’t be – easy. Yorkshire Police, CC BY

Once upon a time, you could tell an election was just around the corner when politicians of all kinds started talking relentlessly about crime. “Tough on crime, tough on the causes of crime” was Tony Blair’s famous promise in the 1997 Labour Party manifesto, before ending 19 years of Tory party rule.

These days, though, you can tell an election is coming when politicians start talking relentlessly about immigration and the UK’s place in Europe. A report from the National Audit Office has prompted just such talk by accusing the government of failing to deport enough foreign nationals who have been convicted of a crime in the UK.

Most of the media coverage that followed the NAO report – and indeed the report itself – risks overstating the nature and scale of this issue. More importantly, it oversimplifies the legal and ethical issues involved in handling foreigners in the UK justice system.

Since the last foreign national prisoner crisis in 2006, which led to the resignation of Charles Clarke as home secretary, there has been tighter supervision of foreign citizens in the criminal justice system. As people enter the UK, or when they obtain a visa, border agents can check their criminal records. Courts can also apply deportation orders to a foreigner’s criminal sentence and an inmate’s nationality is routinely recorded when he or she first arrives in prison.

All these practices are designed to establish the identity credentials that would be needed if a foreigner were to be expelled. They exist alongside other, administrative measures, such as the checks made by landlords and employers when an immigrant is settling in the UK.

The National Audit Office claims expulsion does not always happen. Even when it does, it may not occur in a timely fashion. For an office charged with scrutinising public expenditure, this makes for an inefficient operation. The problem, according to the NAO, is a lack of “joined-up” thinking between government departments.

Cultural differences

It’s true that there are cultural differences between the Home Office and the prison service. The use of archaic technology such as fax machines and the development of separate IT systems probably doesn’t help either. Yet, there are barriers to removing prisoners that exist for very good reasons.

The prison service and the Home Office have profoundly different goals. Prison incarcerate convicted offenders, aim to keep them safe and help them live according to the law during their sentence and, if possible, after their release. It’s a clear mission statement that does not – as yet – make any reference to the nationality of the prisoners in the system. A UK citizen should be treated the same as someone from any other country.

No such clear statement comes out of the Home Office, a department with a wide range of responsibilities. Managing detention and deportation has to be balanced against safeguarding borders and human rights protections.

Whereas the NAO report and much of the political discourse presents barriers to the removal of foreign offenders as irritants, human rights protections remain important principles that the UK rightly champions at home and abroad.

Even seemingly banal issues such as travel documents and prisoner transfer agreements capture important legal and moral questions of due process and human dignity. We cannot and should not deport people to places without being sure that is where they are from, for example. It is logistically and ethically difficult to expel people or to move them.

There are all kinds of reasons for a prisoner not wanting to be moved – including family ties, economic opportunities and, above all, conditions in the prisons of their birth country. None of these are insignificant factors, no matter what a prisoner has done, and it’s precisely why the UK has a long-held convention that prisoners have to agree to being transferred – even if this is increasingly being abandoned.

Limited power

In the wake of this latest controversy, David Cameron confidently stated: “the buck stops with me” when it comes to foreign criminals. But the National Audit Office report reminds us that the government has only limited capacity to change the way it handles these people. Politicians frequently underestimate the complex legal and procedural framework in which the Home Office, the Ministry of Justice and the Foreign Office operate.

Countries evidently have the right to determine who is allowed to enter and remain within their borders – that is a matter of law. Such rights, however, are not absolute, since they are subject to human rights responsibilities and protections. Trying to enforce a blanket policy on the treatment of foreign offenders over-simplifies the issue and overlooks the specific needs and experiences of these people.

It is not always clear that citizenship should trump other matters, as it now seems to. And nor, until recently, has society expected it to do so – in the past, British criminals could expect to be deported to our colonial “possessions”.

As the debate over immigration intensifies before the next election the danger is that we will lose sight of the principles at stake. Human rights are not just for foreigners. They protect us all. As we remove them from others, whether in a bid for electoral expediency or financial efficiency, we put the rights of everyone at risk.