Public Law Solicitors

Over the last 10 years, the number of Foreign Nationals* detained in UK prisons has increased with Foreign Nationals currently representing over 14% of the prison population.

In recent years, and in particular the last 18 months, the Prison Service and the Home Office have joined forces to ensure that the immigration status of imprisoned Foreign National Prisoners have been dealt with before their release. For Foreign Nationals, this could potentially mean that they are transferred into an Immigration Removal Centre or held in prison until their status in the United Kingdom has been established.

In the Immigration Act 2014 a change for Foreign Nationals was introduced, which inserted a new provision allowing the Secretary of State to certify appeals against deportation whereby it is said that deportation cases should be taken out-of country and in doing so there would be no ‘real risk of serious irreversible harm’ caused to the person in question. According to Home Office Statistics, since this has come into force over 1,000 prisoners have been deported.
However, there are two underlying problems, which hugely contribute towards the deportation of Foreign National prisoners. Firstly, indeterminate prisoners, who are also known as “lifers”, have parole reviews whereby risk assessments are carried out to determine whether or not they can be safely released into the community. These reviews also consider the Foreign Nationals immigration status. Once a prisoner is recommend for a progressive move to at least open conditions, the Secretary of State for Justice, whose role is to consider the recommendation of the board and make the final decision in relation to the foreign national prisoner, is currently operating a ban on the progression that the parole board are recommending, due to their to their foreign nationality.

Secondly, in regards to determinate prisoners, who are being granted a progressive move to open conditions, most of these prisoners are not being moved until it is approved by the Home Office, which is rarely the case. This in itself can be perceived as unlawful as prisoners must be in the correct security category for which they are deemed suitable, and the fact that they are being refused a Category D Open Prison status due to their immigration status is a severe injustice.
Most prisoners who are denied progression are not eventually deported due to either strong Article 8 claims or Asylum claims which makes the decision of the Secretary of State’s initial decision not to progress the foreign national arbitrary.

The fact that the prison and the Secretary of State for Justice are not looking at individual circumstances means that blanket policies are being applied to foreign nationals which is causing unfairness. When in reality, most cases should be considered on their own individual basis when proceedings are issued and those who fail to understand the policy are unfairly stuck in the system.

*For the purpose of this article, Foreign National Prisoners are non-British offenders who are subject to custodial sentences.

About the Author: Krishma Bathia

Krishma joined Duncan Lewis as an Immigration Caseworker in November 2013. She is currently an accredited Level 2 Caseworker and Trainee Solicitor within the Public Law department.