The government recently announced it will begin deporting foreign national offenders who are given a custodial sentence as soon as possible after they are convicted. Once deported, it will be up to the receiving country to determine if the offender serves any prison time. This development is the logical end of the repeated expansion of this policy in recent years.
In 2007 the UK instigated (in theory) 'automatic deportation' for those foreign nationals convicted of at least 12 months in custody, albeit with several exceptions. In line with British offenders, foreign national offenders had to serve at least 50% of their sentence before removal from prison was contemplated. For British nationals this meant being considered for release on licence where the remainder of the sentence is served in the community, for foreign nationals this release included being considered for automatic deportation through the Early Removal Scheme (ERS).
Since 2022, the ERS has been expanded. Section 47 of the Nationality and Borders Act (NABA) 2022 changed the law so that foreign nationals could be removed from prison at an earlier point that their national counterpart. It made it so that a foreign national offender can be removed up to 12 months prior to the typical earliest release point (usually 50% through their sentence) so long as they have served a certain portion of their sentence - usually at least around a quarter of their sentence.
The scheme was further extended in January of this year (although the provisions are not due to come into force until late September) and changed this so that a foreign national prisoner may be removed from prison and deported after they have served 30% of their sentence – the 50% time served is no longer the relevant benchmark. The new intention set by the government is essentially to change this to 0% - there will be no set period that a convicted and sentenced foreign national offender will need to spend in prison before they are deported.
The Punitive Potential of Deportation
Whilst many have long understood the punitive potential of deportation, the legal position has remained that deportation is not punishment. This means it does not attract protections such as the right to a fair trial, no retroactivity of the criminal law, nor safeguards requiring proportionality and prohibiting excessive punishment. These new proposals seriously challenge this position.
In 2022 the law was changed so that, unlike a national offender released on licence, when a prisoner is deported their prison sentence is 'paused.' As Spalding argued in the journal Legal Studies last year, this means, unlike a national serving the remainder of their sentence on licence, the deportation is clearly meant to replace the prison sentence rather than form part of it. Somewhat paradoxically, this makes it, legally, more likely that the deportation can be classified as the punishment.
This idea that deportation is intended as a replacement punishment is now being openly discussed by the government who clearly consider this a feature, not a bug in the policy, as a government source told The Times that the Justice Secretary is "firmly of the philosophy that exile is punishment".
What About Justice?
Deploying a modern form of exile as punishment raises questions of justice, if it means a foreign national offender is deported without serving any of their sentence and are deported to essentially walk free, even if they are walking free in a country they would rather not be in. Even though the theoretical basis for punishment and the purpose and efficacy of prison are contested, reconciling the ERS to public conceptions of what justice requires may be problematic. Taking prison out of the punitive equation may not be viewed by victims, or the wider public, as serving the needs of justice where immediate deportation means that the offender is seen to be going free in a foreign country.
Justice also requires fair treatment between offenders and there were already concerns of a two-tier justice system between nationals and non-nationals. Moreover, using exile as a form of punishment may only be perceived as such if it entails either a wrenching away from one's settled life and/or harsh reception conditions. Someone recently arrived in the UK without roots or connections here won't feel the punitive aspects of 'exile' as keenly as the "quasi-national" (e.g. born in the UK or brought here as a child, with family here, "integrated"). There is some evidence that there is some public sympathy for the latter, both in individual instances and in general. This policy may emphasise the injustice of subjecting long-term residents to deportation, especially when compared to examples of individuals without pre-existing ties to the UK "escaping" the punishment of prison through their immediate deportation.
Finally, the new policy undermines the coherence of the government's legal responses to the arrival of asylum applicants on small boats. The primary response has been to increase the number of criminal prosecutions for existing offences, and creating new offences such as a new offence of posting online content encouraging someone to break UK immigration law, backed by the sanction of up to five years imprisonment. However, the sanction is effectively rendered null by early removal. Again, this is more so when early removal is applied to those without pre-existing ties to the UK and "exile" is in effect simply returning them to the position to which they were pre-offending.
Prison, deportation, and criminal justice responses to the small boats "crisis" are contested policies and there is a great deal of disagreement as to their efficacy and desirability. Nothing here should be taken as the authors support for the primacy of prison as a punitive sanction or a criminal justice-first approach to asylum seeking. However, this new policy would result in the worst of all worlds: the injustice of punitive exile visited on quasi-nationals alongside the potential that justice will not be seen to have been served on foreign national offenders without pre-existing ties to the UK.