In early January 2021 the British Home Secretary, Priti Patel, touted new regulations to deal with foreign offenders in the United Kingdom (UK). Patel is seeking to lower the jail time required for deportation. This comes only months after shocking proposals to deal with asylum seekers were released. Unlike the far-fetched measures proposed in late 2020, these new regulations are likely to be implemented.

CURRENT LAW

Under the UK Borders Act 2007, a non-British citizen will be automatically considered for deportation if they are convicted of a crime and their jail sentence is for at least 12 months. This is justified on the basis that the deportation of a foreign criminal is for the public good. However, there are several exceptions to this provision in the Borders Act—for example, where deportation would breach the rights of the person under the European Convention on Human Rights (ECHR) or the UK’s obligations under the 1951 Convention and Protocol Relating to the Status of Refugees(Refugee Convention). 

Primarily, article 8 of the ECHR serves as the basis for an exception to deportation under section 33(2)(a) of the Borders Act. Article 8 ensures respect for private and family life. This effectively prevents deportation where the person can show that their circumstances fall within specific exceptions set out in the UK’s Nationality Immigration and Asylum Act 2002. One such exception under the Immigration and Asylum Act is where the person has lawfully resided in the UK for most of their life and is socially and culturally integrated in the UK.

Beyond article 8, the principle of non-refoulement is a significant consideration in determining deportation. The deporting state must ensure that no one is deported to a country where they are at risk of being subjected to torture or other ill-treatment, a right protected through article 3 of the ECHR. This is a key human rights legal principle and is also enshrined in the case law of the European Court of Human Rights. In the case of Chahal v. The United Kingdom, the European Court found that a person may not be removed to their home country where it is “likely there will be a breach” of the prohibition of torture under article 3.

PROPOSED AMENDMENTS TO THE LAW

The new proposed amendments by Patel would cut the 12-month requirement in half and allow for the deportation of petty criminals. A six-month sentence will usually apply to minor offences like petty theft and marijuana possession. Generally, crimes like this do not have victims or do not cause significant harm to the victim. The threat that these criminals pose to the community is very low and that is why such cases are mostly dealt with in the magistrates’ courts. Requirements for accessing legal aid in the magistrates’ courts are very stringent, which means that it is less likely that potential deportees will have access to representation in these cases. This is a dangerous precedent to set, especially where not only the person's liberty is at stake, but their right to reside in the UK. 

In a political climate where Black Lives Matter and the Windrush scandal have exacerbated racial tensions, Minnie Rahman, public affairs and campaigns manager at The Joint Council for the Welfare of Immigrants, argues that the government's response should not be to make it easier to deport the very people “whose rights are being violated” through denial of their legal rights. The impact of such a provision will be to aggravate the issues already involved in this double tier criminal justice system. People who have lived in the UK for years could have their lives ripped apart because of one mistake. The purpose of the criminal justice system should be to rehabilitate offenders and work to ensure crimes are not committed again. Deportation is a public safety measure which should only be implemented as a final resort, not the automatic legal outcome. 

Further, the government must pay attention to whether it would be able to legally pass this law with regards to asylum-seekers. Under the Refugee Convention, the non-refoulement principle will not apply when the refugee poses a danger to the security of the country or is convicted of a particularly serious crime and constitutes a danger to the community. Lawyers have raised questions over whether a crime resulting in a six-month sentence meets this criteria of being “particularly serious”. This will be a difficult argument for the government to win; if the policy is implemented, it would most likely put the UK in breach of its international legal obligations. 

FURTHER CHANGES

The proposed amendments related to deportation of offenders come as part of the UK government’s wider plan for a full overhaul of the immigration system. These include the points-based system where potential immigrants will need to meet a specific set of requirements, and restrictions on asylum applications for refugees who have passed through a third safe country. The Sovereign Borders Bill will be published in the next few months now that the UK has officially left the EU. This will result in a tightening of immigration controls that will affect the rights of individuals in the UK at present and those looking to come to the UK in the future. The Bill will likely contain further provisions to make deportations easier.

The hope that post-Brexit regulation would be centered around human rights considerations seems to have vanished. The government is intent on “taking back control” and protecting British sovereignty in any way it can. 

Mahin is a final year LLB student at the University of Exeter. He is an aspiring human rights lawyer who is interested in bringing attention to human rights abuses. He is looking to practice in public law, international human rights and civil liberties.

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