Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
11 November 2011

A recent inspection report was released by John Vine, the Independent Chief Inspector of the UK Border Agency (UKBA), detailing his findings and recommendations following an assessment of the UKBA’s efficiency in managing their powers to deport foreign national prisoners.  Usually a person who is liable to deportation is a non British citizen that is currently or has in the past committed a criminal offence and has served a prison sentence of over 12 months in length.

Under the UK Borders Act 2007, there exists a so called automatic deportation provision for foreign national offenders and it requires the Secretary of State to make a Deportation Order against the foreign national sentenced to 12 months or more for a single conviction.  The Chief Inspector’s report outlines the difficulties inherent in the UKBA’s practices towards these people and he provides a number of recommendations to be implemented immediately to improve the UKBA’s handling of such cases.

The report recognises three broad categories of problems in the UKBA’s application of its powers relating to deportation. The first is a marked disparity between the number of initial deportation decisions made by the UKBA and the number of appeals allowed against deportation decisions on Human Rights Grounds by the Court. Second is a rise in the number of foreign national prisoners that are not or cannot be deported and are detained at the end of the prison sentence, under Immigration powers and the third are the inadequate administrative practices.

The report highlights the significant disparity between the UKBA and the Court’s interpretation of whether a foreign national offender is entitled to remain under the Human Rights Act HRA 1998, where over 32% of appeals against deportation decisions were successful in the year leading up to February 2011.  The Chief Inspector therefore recommends the UKBA should better align its decision making process around deportation of foreign national prisoners with Court judgments.  They should consider all evidence available when deciding in the first place if a foreign national prisoner should be deported. This would require the UKBA to take all reasonable steps to acquire information from other public services necessary to make a correct deportation decision, minimising the risk of incorrect decisions and the consequent cost of appeals.

An even more worrying problem outlined in the report is the growing number of foreign national prisoners given deportation decisions that have not yet been deported, usually due to difficulties in enforcing return to specific countries and in acquiring the necessary travel documentation.  The majority of the prisoners yet to be deported are then usually detained upon completion of their prison sentences, despite  a policy presumption that they should be released subject to an assessment of risk to the public and of absconding.  However, the report found that in 97% of cases examined, the individual was held in detention under the Immigration powers post sentence where deportation is being pursued, and there are currently over 1.600 such prisoners detained under the Immigration powers.   The average length of detention has increased from 140 to 190 days.