FOREIGN NATIONAL PRISONERS: AN INTRODUCTION TO THE ISSUES
Nick Armstrong
Nearly six months on from the start of what is now routinely described as the ‘foreign national prisoners debacle’, the problems arising show little sign of abating. This article attempts to provide a guide to some of the more common problems facing prisoners who are not British citizens.
Categorisation
Perhaps the most visible problem - in May this year the Secretary of State issued what appears to have been a set of individual instructions to prison governors recalling all foreign national prisoners (FNPs) from open to closed conditions. It is understood that some have been transferred back, but a number remain languishing, often in local prisons where employment and other opportunities are virtually zero, with all the consequential disruption to their release planning.
A number of judicial reviews have been brought challenging these decisions, in part on the basis that they were taken without regard to individual circumstances. The High Court has granted permission in some and they remain to be heard. In the meantime, however, a new version of Prison Service Order 4630 on Immigration And Foreign Nationals In Prisons has been published. This provides that FNPs can be allocated to open conditions, but only following risk assessments that assume that deportation will take place (which is assumed to go to absconding risk).
The present position is therefore this: there will still be challenges to recategorisation that need to be litigated. These will include cases where it was plainly inappropriate (lifer cases where all risk has been fully assessed at oral hearings are a possible example). Many other potential challenges, however, will either now be out of time (judicial reviews should have been brought within three months of May) or academic because the position should now be reviewed under the new PSO in any event. Prisoners who remain transferred, therefore, should be taking advice, but the advice may be that they invite a review and consider challenging any fresh decision that follows. There may also of course be challenges seeking to compel such fresh decisions, but delay will in some cases be necessary where – as can often happen – the immigration status is unclear. It may be in prisoners’ interests to take time investigating it rather than allowing the prison to rely on what the Immigration and Nationality Directorate (IND) says.
Release on Temporary Licence
PSO 4630 also deals with release on temporary licence (ROTL), which also largely ceased. Paragraph 12 of the PSO provides that ROTL requires the IND’s consent where deportation proceedings (in whatever form) are on foot. In other cases, including those where it is unclear what position IND is taking – i.e. whether they intend to make a deportation decision – assessment for ROTL should as with categorisation assume that deportation will take place. Recent experience suggests that ROTL has now restarted in a number of places.
Parole
Parole may of course be automatic, or discretionary, depending on the sentence served and when it was imposed (essentially now whether it is a Criminal Justice Act 1991 or a Criminal Justice Act 2003 sentence). The first point of importance as far as many FNPs are concerned is that for those who are liable to removal from the UK and who are serving determinate 1991 Act sentences of more than four years, the Parole Board has no role in considering their release. It is entirely a matter for the Secretary of State. A challenge that this distinction was discriminatory and therefore unlawful failed in the Court of Appeal (see Hindawi & Headley [2004] EWCA Civ 1309) but is currently on its way to the House of Lords. At this stage, therefore, the only points to underline are that the distinction is restricted to the 1991 Act (it is not in the 2003 Act which introduced an entirely new sentencing scheme), and that liability to removal is not the same as foreign nationality: in very broad terms it requires an adverse immigration decision. Any form of leave to remain should result in the case going to the Board.
The second point of importance so far as FNPs and parole are concerned, is that immigration status impacts on release plans, and therefore on the prospects of release. This may be because immigration status impacts on whether state benefits and/or employment is available, which affects what a prisoner can do following release, or because release plans still have to be developed even if a prisoner is to be released abroad. This latter point is often misunderstood and raises many practical problems. Judith Farbey is therefore writing separately on lifer release plans elsewhere in this bulletin. With regard to the availability of benefits and/or employment, this can also be a complex problem. Suffice to say that a recent attempt by the Secretary of State to grant a lesser form of status to foreign nationals who had been convicted of serious offences (and which would not have given entitlement to full benefits and employment) failed in the Afghan hijack case of S v SSHD [2006] EWCA Civ 1157 but significant problems remain. Prisoners with any form of uncertainly over their immigration status should always consult specialist immigration solicitors.
Post release date immigration detention
A number of prisoners have experienced the shock of immigration detention post-release date. A number have also experienced release followed by subsequent detention, in some cases some years later. This is one of the worst excesses of the current furore. The points to note are that this is immigration detention, which means, again, immigration advice is required. Second, immigration detention attracts a right to bail, which should always be explored although sureties may be required. Third, immigration detention is always pending something, whether that be investigation, a decision, removal or deportation. It is therefore limited in time and delays can render the detention unlawful. Fourthly, and related to that, there has been a lot of unlawful immigration detention around lately, but particularly surrounding FNPs. Persons for whom there is no possibility of removal have been detained, including those with British citizenship. In principle, damages are payable for unlawful detention.
Deportation itself
Space does not permit a detailed examination of the law on deportation. For prisoners subject to deportation proceedings, however, the following points are of most immediate importance:
1. Start from the point that resisting deportation with a criminal conviction of any seriousness is never easy, and it is getting harder. Most recently, on 20 July 2006, the Secretary of State altered the immigration rules to create a presumption in favour of deportation (see HC 1337). This is not however a counsel of despair, but rather a request for assistance: representatives will need significant assistance from prisoners with regard to explaining the circumstances of the index offence, establishing compassionate factors and in particular family life ties to the UK, and identifying evidence with regard to the risk of re-offending. The latter is of less help when the offences are particularly serious (see eg N (Kenya) [2004] EWCA Civ 1094) but immigration solicitors will need to see everything the prison solicitors have seen. Always start preparing early, retain a copy of relevant reports and in particular any parole dossier.
2. Remember the short time limits. Immigration decisions must be appealed within ten working days and five where the appellant is subject to immigration detention (i.e. the prisoner is not still serving the criminal sentence).
3. It is crucial to recognise that the position is very significantly different for EC citizens. The law changed with immediate effect on 30 April 2006 and affects all EC cases including those that were underway at the time. The result, in essence, is a rare ray of hope in this area: it is now harder to deport EC citizens who have been resident in the UK for five years (and time in prison counts towards that) and very difficult indeed where there has been residence of more than ten years. See generally MG & VC Ireland [2006] UKAIT 00053.
4. Finally, it should be stressed again that deportation is a reasonably specialist field of immigration law. This makes it even more important than usual to identify the right immigration representatives.
Conclusion
This has had to be just an overview of the main issues arising in connection with FNPs. There are others, notably the early release scheme. Such matters may have to be the subject of further articles. At the moment, it looks like all these problems may be around for a while.
Nick Armstrong is a barrister at Tooks Chambers, London, where he specialises in immigration and prison law. www.tooks.co.uk |
