The Home Secretary has a legal duty to deport foreign criminals. This ‘automatic deportation’ law applies to non-British, non-Irish nationals sentenced to at least 12 months’ imprisonment for a criminal offence in the UK, with certain exceptions. There is also ministerial discretion to deport foreign nationals for lesser offences if it is considered “conducive to the public good”.
A 12-month sentence triggers deportation but people can appeal under human rights law
Deportation of foreign national offenders is a longstanding government priority. Prisons refer all foreign nationals given a custodial sentence to the Home Office to consider whether deportation is required, or appropriate if not required.
A deportation order requires the person to leave the UK and prohibits them from returning. It is different from administrative removal of people with no permission to be in the UK but who have not necessarily been convicted of an offence. Deportation generally involves people who were in the UK legally before offending: the order invalidates their right to remain, allowing their removal.
There is no time limit on a deportation order; it continues in force unless the Home Office agrees to revoke it. People can also appeal against deportation, in particular under the European Convention on Human Rights if they have family ties to the UK or have lived here for a long time. UK domestic law aims to reduce the discretion of the courts in deciding these human rights appeals.
Appeals are usually decided before deportation takes place but there is also a ‘deport first, appeal later’ policy in some cases.
The number of foreign offenders removed from the UK is below pre-pandemic levels
In 2023, just under 4,000 foreign offenders were removed from the UK. This was the highest number in four years, but removals remain lower than pre-pandemic levels. From 2010 to 2019, removals averaged 5,500 per year.
As of September 2023, there were 11,800 people liable to deportation who had been released into the community after completing their sentence. This figure has roughly doubled over the last five years.
The Home Office’s efforts to remove foreign national offenders are “not efficient”, according to an inspection report published in June 2023. The Independent Chief Inspector of Borders and Immigration was particularly critical of the department’s record-keeping, saying that it took days to find out how many foreign offenders of a particular nationality were in the system.
The Home Office runs various schemes to facilitate early departure
Under the early removal scheme, foreign national offenders in England and Wales can be released up to 18 months before the end of their custodial sentence if being deported. They must serve at least half their custodial sentence before becoming eligible for early release/removal.
Foreign offenders being deported can also apply for a resettlement grant of up to £1,500 if they co-operate with the process.
Less commonly, prisoners can also be transferred to their home country to serve the balance of their sentence there. The UK has transferred 945 people to 50 countries and territories since 2010.
The borders inspector also criticised the management of these schemes in his June 2023 report.
Removal numbers increased in 2023 and the Starmer government has promised more staff
The number of foreign criminals removed from the UK began to recover under the Sunak government, although not to pre-pandemic levels. An additional 400 caseworkers had been recruited to work on deportations by March 2024, according to Conservative ministers.
The Home Secretary, Yvette Cooper, has stated that the Labour government will “restore order to the border” by setting up a new returns and enforcement unit with 1,000 extra staff. Its remit will include the removal of more foreign national offenders (as well as unsuccessful asylum seekers and other people with no right to remain in the UK).