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Duncan Lewis to challenge Home Secretary’s decision not to deport Irish nationals (15 March 2018)

Date: 15/03/2018
Duncan Lewis, Main Solicitors, Duncan Lewis to challenge Home Secretary’s decision not to deport Irish nationals

Since 2012, foreign national prisoners who have been serving indeterminate sentences have been able to take advantage of the ‘TERS’ scheme (Tariff Expiry Removal Scheme). This means that most foreign nationals are eligible to be immediately deported home as soon as they complete their tariff, and no longer have to go through the parole process. The scheme is good news for anyone wanting to go home and not have to endure the parole process which has experienced significant delays in recent years. It is particularly beneficial to any foreign national prisoner serving an imprisonment for public protection (IPP) sentence and ultimately stagnating as they struggle to get access to rehabilitation courses in order to progress. The TERS scheme is in theory open to all foreign nationals.

On 19 February 2007, the Home Secretary decided that it was not in the interest of the UK to deport Irish nationals except in special circumstances. Deportation of Irish nationals is now only considered in very serious cases and where the prisoner received a 10 year sentence or a five year tariff. Annex H of PSI 52/2011determines the criteria in order to be considered an ‘exceptional’ case for deportation to Ireland under the TERS scheme. It is possibly the only instance where it is advantageous for a prisoner to have a long tariff and to be able to demonstrate that they are high risk to the public, as this is the usual way to be considered as ‘exceptional’ for the TERS scheme.

The Secretary of State for the Home Department argued that Irish prisoners should be considered separately from other European Economic Area (EEA) nationals because the UK shares a land border with Ireland. The fear is that there would be nothing to stop Irish prisoners returning to the UK once deported. However EEA nationals are regularly deported to the EU and there is nothing to stop them travelling to Ireland and returning to the UK in the same way, except for the existence of the deportation order. Irish nationals who are deported would also be subject to a deportation order and this means that if they did clandestinely return to the UK they would be liable to strict penalties and a very long time in prison.

The Secretary of State for the Home Department claimed that there is no blanket ban for deporting Irish prisoners as they can apply under the ‘exceptional route’. Duncan Lewis has received information, from a freedom of information request, that less than five prisoners have been deported to Ireland between 2014 and 2016. This means that less than 2% of applicants to be deported were successful.

Duncan Lewis Solicitors recently won permission at the Royal Courts of Justice to challenge this decision with a leading Judicial Review. We hope to open the way for Irish nationals to be deported home, rather than facing prolonged and unnecessary detention, often in high security prisons.

Leading Human Rights Barrister and Legal Aid Lawyer of the year 2017, Philip Rule said that;

“It is a very important step forward that the court will now consider the suggested justification for this discriminatory treatment of Irish nationals. The impact on prisoners’ private life, and that of their families and children, of a system that is keeping some people here in what is a foreign country in prison, and then on licence after any eventual release, rather than deporting them home cannot be overestimated. It is clear that political agreement meant it seems to benefit the Irish has in fact been used to disadvantage and discriminate against Irish nationals, and that here has been a failure to consider each individual case in a fair and open manner”

Irish prisoners seek deportation because they want to go home and be with their families. Article 8 of the Human Rights Act recognises the vital importance of family and a private life. Preventing deportation to Ireland is neither necessary nor proportionate and should be challenged by those affected.

Author Abigail Fogg is the Director of Prison Law at Duncan Lewis. She has advised clients on a wide range of prison law matters including: pre-tariff applications, applications for exceptional reduction in tariff, Guittard applications, re-categorisation, Home Detention Curfew and Release on Temporary Licences, re-settlement, segregation, licence conditions, medical treatment, transfers, treatment matters, mental health and prison discipline.

For expert advice on all prison law matters, call Abigail on 020 7275 2862, or email her on abigailf@duncanlewis.com.

Author Maeve Thornton, is a Solicitor Advocate with Duncan Lewis. Maeve has dealt with many Public Law Claims arising out of Prison and Criminal Justice Cases. She has represented Prisoners at every level including licence recall hearings, parole board and adjudication matters.

For expert legal advice, contact Maeve on 020 7014 7344, or email her on maevet@duncanlewis.com.

Duncan Lewis Prison Law Solicitors

Duncan Lewis’ Prison Law department provides a unique service to clients as it ensures that the care they have received throughout their criminal matters does not simply end when a person is at their most vulnerable, when they are taken into custody. The client care and focus upon their case continues at this stage by addressing issues such as appeals against conviction and/or sentence, Proceeds of Crime, advice regarding categorisation etc. Duncan Lewis are one of the largest legal aid franchise firms in the UK, with expertise in various areas of prison law; for advice on any issues Law contact our specialist team on 0333 772 0409.

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