In the year 2000, there were 5,586 foreign national prisoners in England and Wales. However, by March 2021, this figure had increased to 9,850, representing a rise of almost 76% in the number of foreign national prisoners in the past two decades. As of March 2021, the foreign national prisoners represented approximately 13% of the total prison population in England and Wales.
FOREIGN NATIONAL OFFENDERS
The UK Home Office defines foreign national offender as someone who is not a British citizen and is convicted in the UK for a serious criminal offence. The number of deportations related to foreign national prisoners also appears to be increasing. Almost 50,000 foreign national offenders were deported from the UK between 2010 and 2020, with approximately 4,700 foreign national offenders deported in a year between March 2019 to March 2020. The Ministry of Justice prison population projection shows that the prison population of England and Wales is expected to grow to 98,700 by the year 2026 – an increase of more than 25% from the current total of 78,328. Considering this projection, the growing number of foreign national prisoners in the past two decades, and increasing global mobility, it becomes important to research different aspects of this group of prisoners. It becomes equally important to ascertain the reasons behind the exponential rise in their numbers and to research the legislation and policies pertinent to them.
LEGISLATION AND POLICIES
Whilst in the last two decades successive UK governments have introduced a number of pieces of legislation and policies pertinent to foreign national offenders, the two most significant pieces of legislation are the UK Borders Act 2007 and the Hubs and Spokes policy 2009. The UK Borders Act 2007 enables automatic deportation of foreign national offenders sentenced to a prison term of at least 12 months unless there is evidence that the deportation will breach their human rights. Similarly, the Hubs and Spokes policy of 2009 led to the creation of special prisons for foreign national prisoners with immigration officials implanted in these institutions to carry out administrative functions, including the facilitation of deportation orders.
This policy also enabled authorities to detain foreign national prisoners beyond the length of their sentences to facilitate deportation. This restructuring of criminal policy to control and punish foreign national offenders represents an example of crimmigration - a term widely used to explain the convergence of criminal law with immigration. Given this stringent legislation and the increasing numbers of deportations, it is worth asking how, and to what extent, the traditional purposes of criminal punishment (that is deterrence, retribution, incapacitation, and rehabilitation) are applicable to foreign national prisoners?
HAS DEPORTATION REPLACED REHABILITATION?
From a human rights perspective, the core objective of prison management should be facilitating the rehabilitation and reintegration of prisoners. This purpose, however, seems to have become skewed and subordinated in foreign national-only prisons. Prison inspections, empirical studies, and academic scholarship all point to the restricted rehabilitation support and “erosion of the rehabilitative ideal”. As a result, scholars are increasingly asking about the way in which deportability shapes how foreign-national prisoners do time. Arguably, when deportation becomes the dominant political and practical function, there seems to be a correlating subordination or removal of rehabilitation and resettlement functions.
Empirical research focusing on foreign national prisoners raises pertinent questions about the prison experience of foreign offenders and broader issues in relation to the traditional purposes of punishment. For instance, an important question is how is “foreignness” transforming punishment in the criminal justice system of England and Wales? Are we witnessing, as several scholars have suggested, the emergence of a two-tiered system of criminal justice that sorts people on the basis of nationality? How is deportation redefining what punishment means for foreign national offenders and how it is experienced?
Given the apparent emergence of a separate system of justice that is directed at foreign nationals in the UK, it is important to consider how this particular aspect of British penalty is subjectively experienced “on the ground”. This article then suggests rethinking the idea of punishment. How can we make sense of punishment when in the English and Welsh criminal justice systems a criminal conviction for foreign nationals – including long term residents – may not only lead to incarceration but may also extend to a different nation altogether, as in the case of deportation? And what becomes of traditional purposes of punishment, including rehabilitation and reintegration, when the governments’ focus is on the deportation of foreign national prisoners?
As much as these questions need consideration, the experiences of foreign national prisoners portray a gloomy picture. Existing literature confirms that foreign national prisoners are more likely to harm themselves and die by suicide than the general prison population. Language barriers, difficulty maintaining family ties, and uncertainty over immigration concerns are three major contributing factors. Arguably, with foreign national prisoners’ rehabilitative needs largely ignored, which ultimately makes it difficult for them to spend their time in prison, and the absence of education and healthcare support, the traditional purpose of punishment is failing to meet its objective.
Irtiza Majeed Sheikh is a M.Phil./Ph.D. scholar in Criminology at Middlesex University London. Irtiza’s research investigates the stringent legislation that may be interpreted as controlling foreign national prisoners in England and Wales. Having previously worked at the International Police Organisation (INTERPOL), he has previously researched on wide ranging issues including migration and counterterrorism. Irtiza hold an BA in Criminology and a MSc in Criminology with Forensic Psychology (Distinction) which he completed as a Dean’s Academic Excellence Scholar from Middlesex University London.