Deportation instead of jail, not after it? Bad idea

In a comment on a recent post here, a good question has been raised:

One thing I don't understand about our treatment of foreign criminals is why we we don't deport them, if that's what we're going to do, straight away. What's the point of cluttering up our already overcrowded prisons with people we want to see the backs of?  

And the cost?  

Wouldn't it be cheaper to send them to some public school for a decade or two?

This seems to me to raise a number of interesting issues that merit a new and separate post.  I have offered a number of suggestions as to why this superficially attractive proposal may in fact be a bad idea.  (Charles Clarke has been hinting at this possibility in the last day or two.)

There seem to me to be several possible objections.

First, in many cases immediate deportation of a foreigner to his own country following his conviction for a serious criminal offence would amount to letting him off scot free — in contrast to a British national who had committed an identical offence and who would have to spend years in prison, a kind of discrimination in favour of (some) foreigners which would give the Sun and the Daily Mail an attack of the vapours, and the BNP a significant boost.  Many would feel that a person who has committed a serious crime in this country ought to be punished for it, although admittedly the basis for that feeling needs to be analysed and debated.

Second, in other cases deportation is a massive penalty, involving disruption of a person's life and the lives of his or her family, especially if they have been living in the UK peacably for years but for a single offence.  It would involve serious injustice to impose this on a foreign national not because he genuinely poses a threat to anyone after release from a prison sentence but in order to save the taxpayer money and to relieve the pressure on our jails (for which other and fairer remedies are available if we cared to adopt them).

Third, it would encourage the idea that the assumption, or default position, should be that all foreigners sentenced to a year or more in jail should almost automatically be deported, either at the beginning or the end of their sentences, unless there are specific reasons for not doing so.  This indefensible proposition has been boosted by David Blunkett's regulation as home secretary that all such prisoners must automatically be 'considered for deportation' before being released.  (The home office's failure to obey this rule is of course the cause of Mr Clarke's current discomfiture.)  Because deportation is potentially such a traumatic penalty, there should be no automatic assumption that in the absence of reasons to the contrary, all foreign prisoners serving a year or more should be deported, either at the beginning or the end of their sentences.  Once a person — even a foreigner! — has served his sentence and been assessed to be safe for release as posing no likely further threat to society, he or she ought not to be further penalised by being deported, provided he or she was legally in the country to begin with.  Deportation needs to be justified by specific and provable evidence in each case. Even foreigners have rights!

Fourth, in many cases it may be almost impossible to establish the nationality status of a prisoner — one of the reasons for non-compliance with the Blunkett diktat.

Fifth, there is a right of appeal against deportation on grounds (such as incompatibility with the person's right to family life under the HRA and the ECHR) which do not apply to appeals against a prison sentence:  semi-automatic deportation orders in lieu of (or in addition to) imprisonment would open up a whole raft of appeals which could swamp the immigration appeals system.

Sixth, there are many countries to which it is impossible under the HRA and the ECHR to deport anyone because of the likelihood that the deportee, on arrival, will be tortured, killed or otherwise subjected to cruel and inhuman treatment.  It would seem manifestly unjust to deport one foreigner convicted of an offence to his country of origin without having to serve a jail sentence, while another foreigner from a neighbouring country, who had been convicted of an identical offence but who could not be deported because his country practises torture, would have to serve his sentence in a British jail.  (This is a variant of the first objection.)

And seventh:  There would be little point in deporting to their countries of origin offenders coming from other EU countries, since under EU law there would be nothing to stop them coming straight back.  It would seem anomalous and discriminatory to impose the same penalty on EU and non-EU nationals when its practical effect would be so diametrically different.

But your alternative money-saving proposal — send them to a British public school for a few years — has great attractions.  Evelyn Waugh noted in Decline and Fall that anyone who has been to an English public boarding school will feel quite at home in prison.  If corporal punishment in schools could be re-legalised at the same time, the solution you propose would be made even more seductive.

Others may well either take a different view — or suggest yet more objections to the proposal (immediate deportation, not doing one's bird at a public school).

Update (4 May 06):  The Home Secretary's statement yesterday, proposing a new regime under which all foreigners convicted of imprisonable offences would automatically be deported unless they produced cogent reasons why they should not be, raises a host of questions which demand answers before any such draconian project could be accepted.  Some of these questions are considered above.  Others are usefully discussed at:   and .  

Both are strongly recommended.

I don't believe that it will prove possible for the government to reconcile this project with Britain's obligations under the European Convention of Human Rights or the British Human Rights Act which incorporates it in our domestic law.  I hope and believe that our courts would declare it incompatible with both those legal instruments, both binding on UK ministers, on the grounds that it would be discriminatory and disproportionate.  Any attempt to deprive foreigners subject to virtually automatic deportation of their rights of appeal and, if necessary, judicial review, ought to be strongly resisted by all decent people.

Once again it looks as if the blogosphere is leading the national media in analysing and pointing out the issues raised by ministers' latest flawed and knee-jerk proposals.

Paris, 4 May 2006 

21 Responses

  1. John Miles says:

    I’d like to make one point clear: I’m not advocating "deportation instead of gaol."
    All I’m trying to say is that if the courts, in their infinite wisdom, decide someone ought to be deported, it makes superficial sense to deport them without unnecessary delay.

  2. Brian says:

    My understanding is that the courts can’t actually decide that someone should be deported: all they can do is recommend that a person should be ‘considered for deportation’, i.e. by the home secretary.  In other words, the courts can’t ‘sentence’ anyone to be deported in lieu of sending him or her to prison.  Deportation at the start of a term of imprisonment or very early in it would, I think, be open to the objections in my original post (above).  It would in practice amount to ‘deportation instead of gaol’. 


  3. Aidan says:

    There are so many complexities to this, that it is difficult to know where to start. First of all, I think that you are right to suggest that the best way is to simply review each person’s deportation at the end of a sentence, and that the use of deportation in lieu of prison creates more problems than it solves.

    However, to me your points imply that a person who has served a prison sentence has a right to be treated afterwards as though they had never committed the crime at all. I don’t agree with this. People who have committed crimes are likely to reoffend for a variety of reasons (most beyond the control of the individual), which is why many jobs require criminal record checks, and why there is a sex offenders register. I don’t think that as individuals or as a society, we are morally bound to overlook a person’s criminal record, in a way which would benefit the offender at our expense. In addition, I don’t consider that when someone goes to prison they actually are paying their debt to society, to use the common phrase, because they are running up a massive bill for the taxpayer rather than compensating either their victims or society.

    Personally I think that by committing a serious crime, an individual is forfeiting their normal rights to enter and stay in the UK, and that we are justified in attempting to remove them and prevent their return if at all possible. In doing this, however, we would need to take into consideration whether repatriation would endanger their lives or impose significant hardship on their families, but this requirement to make exceptions for humanitarian reasons does not negate the general principle.

    Finally, by coincidence I went to the same public school as Evelyn Waugh, although quite some years later I might add. In the intervening time it had become considerably less prison like, and in the years after I left, it has become even less so (although possibly comparable to an open prison – but I’ve not been an inmate at one of those, so I couldn’t compare). If public schools were to be used to solve the problems of prison overcrowding, I fear that they would be need of considerable traditionalisation to render them suitable.

    Brian comments: Thanks. I don’t disagree fundamentally with what you say about aliens who commit serious crimes in the UK forfeiting their right to remain after serving their sentences, with the provisos that you mention, and (I would add) a careful assessment of the degree of risk that each person concerned will re-offend, and a proper right of appeal to a properly constituted court.

    But I’m less happy with some of what you say about British citizens who have served their sentences and returned to the community. You seem to me to come close to saying that once a person has been convicted of an offence, he must be marked for life, and made to pay what amounts to a life-long penalty regardless of any evidence of reform and rehabilitation, remorse, subsequent character-changing experiences such as education, or simply the sheer unlikelihood that he will commit a similar offence again (most murders for example take place in a domestic environment and are almost never repeated). I accept the need for such safeguards as a sex offenders register, although I think it monstrous that anyone should go onto it automatically without any case-by-case assessment of the likelihood of re-offending, and of the availability of a criminal records check for employers, although I think such records should be expunged after a given number of years if there has been no further offence (I think that happens, in fact?). But in general I am extremely suspicious of, and sceptical about, any régime which inflicts de facto penalties on people because of a fear of what they might do in the future, after they have been definitively punished for what they may have done in the past. This government is especially prone to this illiberal and potentially unjust practice — ASBOs, Control Orders, offences such as ‘acts preparatory to terrorism’, the continuing effort to take powers to lock up people who have been assessed as suffering from psychological disorders which are untreatable, and so forth. The concept of having paid one’s debt to society and being able to make a fresh start seems to me a valid and vital one, which has nothing to do with financial costs or debts. Anyway, there isn’t a prison governor, home secretary, security service officer, psychiatrist, palm reader or crystal ball gazer alive who can predict the future so accurately as to justify locking up another person on the basis of that prediction. To try to protect ourselves by imprisoning or deporting everyone who might conceivably pose a threat in some future hypothetical situation is to take risk-averseness to new and ludicrous depths.

    If we are worried about the huge cost of keeping people in prison, we should try much harder to stop sending people to prison who will not benefit from it, who are likely to be recruited as criminals by it (and to be damaged by the experience in other ways), who will be made likelier, not less likely, to re-offend on release, and whose incarceration imposes unwarranted hardship on their relatives and others. As usual we could benefit from the experience of other countries with much smaller prison populations, if only our political masters weren’t so chauvinistic and parochial.

  4. John Miles says:

    OK, I’m sure you’re right about the courts just recommending and the Home Secretary deciding, but I don’t see that it makes much difference.
    As I say, I’m not defending the present system, I just feel that while we’re stuck with it we might as well try to operate it sensibly.
    Obviously the Home Secretary has to take all kind of things into consideration, but why should he be more likely to reach the right decision at the end of a man’s sentence that at its beginning?
    Why should an early decision on deportation necessarily amount to “deportation instead of gaol?”
    What on earth’s the point of keeping a man in prison if he’s going to end up being deported?
    If British nationals feel hard done by, why can’t they be allowed to opt for deportation themselves?
    I doubt if many would, partly because I don’t suppose anybody’d have’em, partly because, as you say, deportation can be an even tougher punishment than imprisonment.

  5. StephenG says:

    Here’s a genuine example from the court where I work.

    We recently tried a young man for murder, after he shot someone in a nightclub. He’s a Jamaican national who was trying to obtain residence here but, after the shooting, suddenly changed his plans and returned home, whence we had to extradite him.

    He was convicted and sentenced to life with a recommendation that he serve at least 25 years before being deported back to Jamaica.

    At what stage do people think we should send him back to Jamaica, assuming we can’t arrange for him to serve the balance of the 25 years there?

    Brian writes: When he has served the recommended 25 years in a British prison.

  6. John Miles says:

    Yes, but if he’s going to be eventually deported, who does it help to keep him here in prison for 25 years?
    The prisoner?
    Brit taxpayers?
    The prison industry?
    The Jamaicans?
    Or who?
    Why shouldn’t the Jamaicans keep him in prison – if that’s what they want – for the rest of his sentence? (Assuming, of course, that conditions in Jamaican prisons are reasonably humane, which may or may not be the case.)

    Brian replies: The question put by StephenG to which I was replying asked:

    At what stage do people think we should send him back to Jamaica, assuming we can’t arrange for him to serve the balance of the 25 years there?

    (My emphasis.)

    The other points I have already commented on.

  7. Angus says:

    Isn’t it amazing that people continue to think of loads of reasons why we should be fair to the perpetrators of crime e.g. by referring to deportation as a “massive penalty” or a “traumatic penalty”. The main object of the exercise is to remove the criminals from the society in which they have caused harm and to show that they have failed to show that they are worthy of citizenship. Of course it is hard on their families, but the fault lies with the perpetrator not with the policy on deportation.

    Brian comments: It seems to me even more amazing that anyone should advocate being unfair to people, whether they have ‘perpetrated’ a crime (and incidentally paid the price for it by serving a longish term of imprisonment) or not: and more amazing still that it should be a matter for criticism to point out that in many cases uprooting someone from the home and country where he or she has lived for many years, held down a job, reared and educated children, got a mortgage, made friends, and invested his/her life savings, represents a ‘massive’ and ‘traumatic penalty’. How else should it be described? How many times is it suggested that a person should be punished for a single crime? There is also the question of legal rights to consider, e.g. under Britain’s international law obligations as well as domestic law, requiring among other things a right of appeal and the right not to be deported to a country where one is likely to be subjected to ill-treatment.

  8. StephenG says:

    As Brian points out, my question involved the assumption — valid, as far as I know — that we don’t at present have any arrangement with Jamaica (or many other counties, come to that) for prisoners sentenced here to serve their sentences back home.

    Consequently, deporting my chap to Jamaica rather than holding him here would, in effect, be giving him a substantial discount on his sentence just because he’s fortunate enough to have a Jamaican rather than a British passport, which can’t be what anyone intends.

  9. Angus says:

    We obviously do not share the same level of tolerance for those who ruin other people’s lives. That includes those people who do not have citizenship of this country and, in some cases those who sought shelter in this country, and then abuse their welcome. I notice you use the model citizen as an example i.e held down a job, reared and educated children, etc, when we both know that this is not the type of person we are really talking about, and not the type of person who has murdered, raped, abused children, etc.

  10. John Miles says:

    Yes, I’ve got it all wrong once again.
    I misunderstood your quite legitimate answer to Stephen G’s perhaps slightly ambiguous question, “What do most people think should be done about this man?”
    The answer I am looking for is the – to me much more interesting and important – question, “What should be done about this man?”

  11. Brian says:

    I have added an Update (dated 4 May 06) at the end of the original post above, in the light of the important — and shameful — statement by the home secretary yesterday proposing that in effect all foreigners convicted of imprisonable offences, even if not actually sentenced to be imprisoned for them, should be automatically deported unless there are convincing reasons to the contrary. I recommend a visit to the two blog posts on this subject quoted in my update.

    My answer to John Miles’s revised question in his preceding comment is: When he has served the recommended 25 years in a British prison, and then only if there are solid grounds for deporting him and after he has exhausted all opportunities to appeal against deportation to a properly constituted court of law.

  12. John Miles says:

    I’ve no quarrel with any of the recommendations of your revised answer, except possibly the first.
    If you’re going to do all those things, why wait twenty five years?
    Who – if anyone – actually benefits from keeping this guy in the slammer for 25 years?
    Please spell out your answer in Janet-and-John language so that morons like me can understand it.

  13. Lourdes Frazao says:

    As a EU diplomat, please allow me to say that it would be unwise for the English to start deporting minor EU offenders to their countries of origin. You seem to forget that many English criminals have “retired” and/or run their “empires” from the costas of Spain, France, Italy, etc. Needless to say that we will retaliate by sending back to your country murderers, rapists, child molesters, etc. As you will be aware, the sun attracts these people to the “Continent”. I love England and the English, etc., but I do think that you are becoming too American. It must be Tony Blair’s love affair with babby Bush. Under your Home Secretary’s current proposals, a minor from an EU country who arrived in the UK to join his family, who has lived in your country legally for 20/30 years, etc., can be “deported” for a minor offence. I do think that this state of affairs is barbaric. I can understand anyone wanting to deport serious criminals (murderers, rapists, etc.) but to want to depart all foreigners who break the law is going too far. After all, if we are honest, most of us have made mistakes in life. Needless to say that we should no judge others too harhsly as we donot know their particular circumstances. In short, a civilised society has to forgive and rehabilitate petty non-violent offenders.

    Brian replies: I suggest that you direct your criticisms (with most of which I agree generally) at our former home secretary, who was sacked by Tony Blair a few hours ago — not at me! In any case, I doubt if you need to worry. Clarke’s proposals have already failed in their primary objective — to enable him to keep his job — and although his successor is likely to be even more illiberal than he has turned out to be, he’s likely to be deterred from pursuing them in the form in which Clarke announced them by the virtual certainty that our courts would prevent them from being put into practice, by declaring them incompatible with the UK’s human rights obligations under both national and international law.

  14. Lourdes Frazao says:

    Thanks for your reply. Please note that it is nothing personal against you. I will definitely visit Tony Blair’s website at 10 Downing Street and leave him a love message. Haha

  15. coningham family says:

    If all “foreigners” are to be deported, we are leaving London Town. Why? because the place will become a big cemetery with lights. Needless to say that London will not be able to function without our dear “foreign” neighbours. We mean, gentlemen/ladies, can you imagine a place full of native “saints”? — bloody boring.

    Only a nazi state would deport a petty offender legally resident in this country for many years. Our foreign neighbour has been legally resident in this country since the age of 16 (now over 30 years’ legal residence in this country). After his mother was diagnosed with cancer, he was the only person looking after his mother full-time (only child). I don’t really know what happened (stress, cry for help): he started shoplifting. If the present proposals are put in place, he would be transported to a foreign country.

    I think the one we need to transport is Tony Blair for starting an illegal war which has killed many innocent children, women, old men, etc.

    Brian writes: An extremely good example of the kind of harsh injustice that these Home Office proposals would involve. I would like to think that a new home secretary would drop them like red-hot bricks, but somehow I don’t see that happening with “Dr” John Reid taking over. He’s not exactly famed for his exquisite liberal sensitivities.

    If there’s any sign of a plan to deport your neighbour, I suggest that you urge him to get good legal advice — it’s the sort of case that a good civil rights solicitor like Gareth Peirce (see and a barrister from Matrix Chambers might agree to take for nothing. There’d be an excellent argument that deportation would be in breach of the man’s right to family life, disproportionate and discriminatory. It would also be a good idea, if there’s any sign at all of a move to deport him, for either you or him to seek your MP’s urgent advice and help.

  16. Civil Servant says:

    Yes, any attempt to deprive foreigners subject to automatic deportation of their rights of appeal and judicial review, ought to be strongly resisted by all decent people. As a civil servant, I can tell you that they want foreigners to “appeal” from abroad. Today is foreigners and tomorrow will be our remaining civil rights.

  17. John Miles says:

    I’m still agog to know how you how you answer my questions of May 4th.

    Here they are again:
    “I’ve no quarrel with any of the recommendations of your revised answer, except possibly the first.

    If you’re going to do all those things, why wait twenty five years?
    BLB: Why keep anyone in jail for any length of time? What has the convicted person’s nationality got to do with it?

    Who – if anyone – actually benefits from keeping this guy in the slammer for 25 years?
    BLB: Who — if anyone — benefits from keeping anyone in jail for any length of time? What has the convicted person’s nationality got to do with it?

    Please spell out your answer in Janet-and-John language so that morons like me can understand it.”

    BLB: I think the more extended answers to your questions are implicit in what I have already written on this subject here, and I don’t see much purpose in repeating myself. Sorry: this isn’t meant to be dismissive, but I just have a slight sense of going round and round at this point.

  18. John Miles says:

    Why keep anyone in gaol for any length of time?

    Different people may have different reasons, but – it seems to me – the one most relevant to this discussion is to try to protect the public from the criminal in question. He shouldn’t be released – in serious cases anyway – until the experts think it’s safe, his behaviour should be monitored and any reoffending should bring him back inside forthwith.
    Conversely, once he’s deemed fit to re-enter society, there seems – to some people anyway – much less point in keeping him locked up.

    What has the convicted person’s nationality got to do with it?

    Criminals are either born-and-bred Brits, naturalised Brits or foreigners, some here legally, some not.

    I doubt if many people seriously think born-and-bred British crooks should be deported; much though they might like the idea it just isn’t practical.

    Naturalised Brits pose more of a problem.
    The powers that be tell us that immigration has to be controlled because of numbers, and we know that lots of good people are queueing up to get in.
    It seems all wrong that would-be immigrants who try to do everything right should be kept out because of we’ve naturalised too many crooks.
    Perhaps naturalisation should have some sort of a probationary period: eg toe the line for five years anyway, or pack your bags.

    As for foreigners, whether here legally or not, I can’t see why they shouldn’t be sent home; unless perhaps their country of origin is likely to treat them inhumanely.

    You say the answer to “Who – if anyone – actually benefits from keeping this guy in the slammer for 25 years?” is implicit in what you have already said on the subject.
    This may be true; but I’ve just re-read it all; you make your views pretty clear but it’s not always easy to see precisely what they’re grounded on.
    Perhaps you could refer me to the relevant bits?

  19. John Miles says:

    I forgot to mention citizens of other EU States.
    Much the same considerations apply to them as to home-grown Brits.

  20. cj says:

    I feel that everyone should be treated equally. If you are a foriegn national and commit a crime you should be treated the same way as if you were British.  A foriegn national is at no more of a threat to the public after release than a British person.  We are all human beings and its as if we the British public are saying go and commit your crime but do it in your own country.  This isnt right. On the other hand I do agree that if a foriegn national commits a crime and the Home office are going to consider them for deportation, then they should be considered for deportation,  straight away and not left for the tax payer to foot the bill.  Serving all your sentence then told that there is  a possibility for deportation is unfair its a double punishment.  Someone that has been in the country over ten years and never commited a crime before should not be considered for deportation.    There are people that are deported for drug offences but then murderers and paedophiles can stay.  Its about time someone sat down and really thought about what to do in these situations and looked at cases individually.

    Carol Jones

  21. B.R 007 says:

    I am a ‘foreign national’ as I came here when I was 5 and even though I have been here for 27 years I never became naturalised. When I was 18 years old I got addicted to class a drugs and started commiting criminal offences to fund the habit. In 2006 I was infromed that I was to be deported.
    I am now in a detention centre awaiting my removal and frankly some of the comments i have seen by the home office disgusts me! Just because I spent the first 5 years of my life in sri Lanka I am being punished twice! first i had to serve a prison sentence than I have to leave my home of 27 years, my immediate and extended family ( who do have british passports ) and and my life long friends.
    If I had physically harmed or raped someone I might be a little more understanding but I dont feel it is just for my famnily to lose one of their member just because I have committed offences.
    Frankly people should be ashamed of themselves if they think that justr because someone has commited a crime that they should not have the right to live here. who are they to say so?! Everyone has human rights, the right to liberty and the right to family life….. I dont think the Uk is so special that peoples human rights should be discarded just so they have one less shoplifter walking around in society!

    Brian writes: Thank you for this. I’m afraid that there is no such thing as a fundamental human right to live in Britain if you are not a British citizen, even if you have been granted the right of abode at some stage. I accept that it’s hard to be deported after having lived for so long in this country, but under international law virtually every country reserves the right to deport “undesirable aliens”. You could consult a human rights lawyer about the possibility of appealing on the grounds of your right to family life under the HRA and the ECHR, but (without knowing more about your particular case) I wouldn’t rate your chances of success very highly. I don’t think the note of anger, accusation and protest in your comment would help your case, either.

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