Government Response

The Government responded to this petition on Wednesday 15th November 2023

The Home Secretary already has a statutory duty to deport foreign nationals sentenced to at least 12 months’ imprisonment, unless an exception applies. This change is therefore unnecessary.

The Government is clear that foreign national offenders should be deported from the UK wherever it is legal to do so. Any foreign national offender who is convicted of a crime and given a prison sentence is considered for deportation at the earliest opportunity.

Parliament has given the power to deport a foreign national offender to the Secretary of State under section 3(5) of the Immigration Act 1971.

The UK Borders Act 2007 places a duty on the Secretary of State to make a deportation order in respect of a foreign national convicted of an offence in the UK and sentenced to 12 months or more in prison. This is subject to several exceptions, including where to do so would be a breach of a person’s ECHR rights or the UK’s obligations under the Refugee Convention.

The statutory duty to deport means there is no need for a sentencing judge to make a deportation decision in cases where the sentence is 12 months or more. The Government has no plans to amend the deportation powers in the UK Borders Act 2007.

Where the 12-month threshold is not met, deportation is considered under section 3(5) of the Immigration Act 1971 on the ground it is conducive to the public good. A court may also recommend deportation under section 3(6) of the Immigration Act 1971.

British citizens cannot be deported. In some cases, we may remove a person’s British citizenship, also known as deprivation of citizenship, under section 40 of the British Nationality Act 1981. This power is reserved for those whose conduct poses a threat to the UK, involves very high harm or where citizenship was obtained by fraud and against the most dangerous people, such as terrorists, extremists, and serious organised criminals. Such decisions are therefore made following careful consideration of advice from officials and lawyers and in accordance with domestic and international law as well as the UN Convention on the Reduction of Statelessness.

There is no right of appeal against a deportation decision. However, as set out in the Nationality, Immigration and Asylum Act 2002, an individual may appeal the refusal of a human rights or protection claim or the revocation of protection status.
Where a person has made an in-country appeal, they cannot be removed while the appeal is pending. An in-time appeal is no longer pending when it is finally determined, which means where there has been a determination and no further appeal is possible. An appeal will also no longer be pending when it is withdrawn or abandoned.

Published Home Office detention policy makes it clear that detention must only be used when necessary, and for the shortest period possible. There is a presumption in favour of liberty of any person. Detention is lawful only when there is a realistic prospect of removal within a reasonable timescale. Detaining a person while we are dealing with further representations or practical barriers such as obtaining a valid travel document, which can take some time to resolve, may not therefore be possible.

Where deportation is being pursued, foreign national offenders serving determinate sentences are eligible for the early removal scheme (ERS). ERS enables the removal of foreign national offenders from prison at an earlier point in their sentence than would otherwise be possible for the sole purpose of removal or deportation from the UK. All eligible foreign national offenders in prison in England and Wales can be considered for removal under the scheme and are only removed from prison with the authorisation of the prison governor if they believe that removal under the scheme is suitable.

Eligibility for removal under the early removal scheme is up to a maximum of 12 months before the earliest point the offender would otherwise be released providing they have served at least one half of the custodial period of the sentence in custody.

Home Office

This is a revised response. The Petitions Committee requested a response which more directly addressed the request of the petition. You can find the original response towards the bottom of the petition page (https://petition.parliament.uk/petitions/642364)