This Commons Library briefing paper provides an overview of the Home Secretary's powers to deport foreign criminals from the UK, related Government policy and Parliamentary and external scrutiny of the efficiency of current procedures.

Download the full report

Powers to deport foreign criminals

Deportation is a statutory power of the Home Secretary. People who are not British citizens are liable to deportation from the UK if the Home Secretary deems their deportation to be conducive to the public good.

The UK Borders Act 2007 made provision for the automatic deportation of foreign criminals. The Home Secretary must make a deportation order in respect of a foreign criminal unless certain exceptions apply (e.g. where deportation would contravene the UK’s obligations under the Refugee and Human Rights Conventions).

The Home Secretary’s ability to deport criminals from EEA Member States is restricted by the operation of EU law, which requires that expulsion must be proportionate and based exclusively on the personal conduct of the individual concerned and level of ‘threat’ that they pose to public policy or public security.

The position of EEA citizens will change after Brexit, when EEA citizens and their family members will come within the scope of UK domestic law on deportation. The timeframe for the changes to be implemented will depend on the type of exit the UK has from the EU.

Appeals

The Nationality, Immigration and Asylum Act 2002 sets out the considerations to which tribunals and courts must ‘have regard’ when hearing an appeal by a foreign national offender against a deportation order.

In July 2017 the Supreme Court found the ‘deport first, appeal later’ rules to be unfair and unlawful. Originally applied only to foreign national offenders facing deportation from the UK, the approach was extended in 2016 so that any appellant challenging an immigration decision (other than in asylum cases) could be required to leave the UK. In R (Kiarie and Byndloss) v Secretary of State for the Home Department the Supreme Court held that the Home Secretary had not established that ‘deport first, appeal later’ struck a fair balance between the rights of the appellants and the interests of the wider community.

Operation Nexus

Operation Nexus is a joint operation between the Home Office’s Immigration Enforcement Directorate and several police forces. It was launched in London in 2012. Described as a means of more effectively tackling offending by foreign nationals, its focus was said to be on identifying ‘high harm’ offenders. However the initiative has attracted criticism for facilitating the deportation of people with no criminal convictions based on untested police reports or conduct that led to a criminal charge but did not result in a conviction. Critics say its mission has widened considerably since its inception, targeting specific groups for deportation.

An unsuccessful legal challenge was brought by the AIRE Centre in 2017, and their subsequent appeal was dismissed in 2018.

Deportation with assurances

As both the Refugee and Human Rights conventions prohibit deportation when there is a real risk of torture or inhuman or degrading treatment or punishment in the receiving state, the UK has pursued a policy of deportation with assurances [DWA] in the cases of foreign nationals suspected of terrorism.

The policy has been criticised by both human rights advocates and by those who feel the strict conditions imposed by the European Court of Human Rights infringe upon British sovereignty.

David Anderson QC, former Independent Reviewer of Terrorism Legislation, was tasked by the Coalition Government with reviewing the process of deporting foreign nationals suspected of terrorism. His report, co-authored with Clive Walker QC, professor emeritus of criminal justice studies at Leeds University, was published in July 2017.

Scrutiny

The Home Affairs Select Committee criticised the Home Office’s decision to set targets for deportation in their 2018 report into the Windrush Generation.

In its June 2016 report on the work of the Immigration Directorates, the Home Affairs Committee focussed on efforts to deport foreign national offenders with EU citizenship, concluding that the Government ‘should have done better’. In its response the Home Office argued that the number of foreign national offenders removed from the UK in 2015-16 was the highest since records began.

The lack of progress and inefficient approach ‘dismayed’ the Public Accounts Committee. The Committee noted in 2015 that over a third of failed deportations were within Home Office control. It pointed out that the number of British citizens returned to UK prisons through prison transfer agreements to serve the remainder of their sentences in the UK was broadly double the number of foreign national offenders removed from the UK. It called for a full end-to-end review of the deportation process.

The NAO’s 2014 report described slow progress in deporting foreign national offenders despite both Labour and Coalition Governments having put greater effort and resources into removals. Its investigation found legal processes and administrative factors exacerbating problems caused by a lack of joint working and administrative errors. It recognised the Government’s belief that the Immigration Act 2014 would reduce the number of appeals against deportation orders.

Download the full report