As the drive to deport foreign criminals goes on, Frances Webber, a leading human rights lawyer, reports on new legislation affecting foreign national prisoners and their families.

The automatic deportation provisions of the 2007 UK Borders Act came into force on 1 August 2008. From that date it became possible for the UK Borders Agency to deport any non-British and non-EEA citizen who has been sentenced to a prison term of 12 months or more, no matter how long settled in the UK and no matter how valuable their work is to their local community, unless they can show that deportation breaches their human rights. There is no right of appeal against deportation – only against the decision that human rights are not breached by deportation. Appellants will have to show either that they face persecution, torture or degradation in the country to which they are being deported, or that separation from family members settled in Britain is ‘disproportionate’ to the crime they committed. Both the Home Office and the immigration judges impose a very high threshold on appellants, generally arguing that British-born spouses and children can uproot themselves to live with their offending partner or parent in, for example, Jamaica, Algeria or Sudan without difficulty.

Designation and humiliation

But what of those who succeed in arguing that they cannot lawfully be returned to their country of origin? The provisions of Part Ten of the Criminal Justice and Immigration Act (CJIA), which received Royal Assent on 8 May 2008, threaten to cast them into immigration limbo. They create a ‘special immigration status’ for foreign criminals who cannot be deported because to do so would breach their human rights. Any non-British and non-EEA citizen who has committed a criminal offence and has been sentenced to two years’ imprisonment or more, or who has been convicted of an offence specified by statutory instrument as ‘particularly serious’ (which includes offences of petty theft and criminal damage) and was sent to prison for any length of time, can be ‘designated’ by the Secretary of State. So can any member of his or her family. Designation means being stripped of immigration status, with all the accompanying rights – which, if the person was settled in the UK, can include the right to work, to social security benefits, to social housing, to grants and loans for education, to social services and full health care, and in the case of Commonwealth citizens, to vote. All these rights will be in jeopardy for those ‘designated’ by the Home Secretary when the provisions are brought into force. A designated person can be told where to live and may be subjected to a curfew restricting their movements, can be restricted or prohibited from working, may be required to report to the police, the Home Office or immigration officers, may be required to wear a tag and be subjected to electronic monitoring, and may be sent to prison for up to 51 weeks for breach of any of these conditions. They can be provided with support similar to NASS support, but not with cash support.

Until the provisions come into force, we will not know how the Home Office intends to deploy its new armoury of powers against foreign criminals. But the powers it has been given are formidable, and combine the worst features of the treatment of failed asylum seekers (such as cashless support) with conditions (such as wearing an electronic tag) which are currently attached to suspected terrorists who are on immigration bail pending deportation, or on control orders. Human rights lawyers have seen the degrading effect which the workhouse-style regime of cashless support has on failed asylum seekers, and the effect of curfews, bail zones and electronic tags on the mental health of those subjected to them. They fear that the CJIA provisions will be used as double punishment for foreign offenders, and suspect that they are calculated to persuade those subjected to them to go back to their countries of origin, despite the risks and hardships to be faced there, rather than put up with indefinite immigration limbo, with the endless petty humiliations such lack of status carries.