By Anonymous Barrister/NGO composers, no-deportations.org
Ever since the foreign national prisoners scandal in 2006, when home secretary Charles Clarke resigned as it emerged that foreign national prisoners (FNPs) were being released at the end of their sentence without being considered for deportation, FNPs have been detained for longer and longer periods and deportation of anyone with even minor criminal convictions has become the norm.
But if you or a loved one or friend is detained for deportation following a prison sentence, you should not assume that nothing can be done, and that detention and deportation are inevitable.
In some important recent cases, the Supreme Court has held that the blanket detention of FNPs pending deportation, and detention without regular review, was unlawful; and a Home Office decision to deport can be challenged by anyone with family or other significant ties to the UK, or anyone who has good reason to fear return to their own country.
Detention and deportation need to be dealt with separately, as each raises distinct legal and practical issues.
The person may need legal advice and perhaps representation - but for detainees, the choice of representative is very limited, and if the solicitor cannot help, there are organisations specialising in detention matters, such as, Bail for Immigration Detainees (BID) and help may be available from an organisation such as the National Coalition of Anti-Deportation Campaigns, Prisoners Advice Service (PAS), Detention Action (formerly London Detainee Support Group).
Details about the organisations are given below.
Detention and bail
Anyone who has been recommended for deportation by a judge can be detained for deportation at the end of his sentence.
Even if the person has not been recommended for deportation, if the Home Office is considering deporting him, he can be held pending the decision, and pending deportation.
But detention for deportation is not automatic, and the Home Office must not detain without giving reasons for the detention and must keep it under regular monthly review.
There is no time limit for detention, but if the person has been detained for a long time (two or three years) and the Home Office is not taking steps to deport him, or if there is no reasonable prospect of his being deported (e.g. because the Embassy will not issue travel documents or because it is not safe to remove people to his country) he should not continue to be detained.
FNPs in IRCs
If it seems probable that the person in detention is being detained unlawfully - because of the length of time he has been detained, or because he has not received regular monthly reviews of his detention, or because there is no prospect of his deportation in the foreseeable future, he should consult a solicitor, or BID.
In each detention centre there are immigration solicitors who provide advice and assistance under an exclusive contract with the Legal Services Commission. This means that the person in detention can't use another solicitor unless he can pay privately.
Even if the person is lawfully detained, he can apply for bail to an immigration officer or to the Immigration and Asylum Chamber of the First Tier Tribunal at any time. He will generally (but not always) need sureties who will guarantee that he will turn up to any future Tribunal hearings, and report as required. Sureties must be prepared to forfeit some of their savings if he does not turn up. He will also need a bail address (this can be with family members, friends or in a bail hostel). It is always useful to have family and friends attend court for the bail hearing, and sometimes it is useful for them to tell the judge about the strength of the person's family or community ties, as the judge will need reassurance that the person is not going to disappear if he gets bail.
Deportation and appeal
Whether there is a right of appeal against the deportation, and what it covers, depends on a number of things including: the length of the sentence; the nature of the offence; how long ago the decision to deport was taken; whether the person has family or other ties in the UK and whether he has good reason to fear return.
The law has become quite technical. But the fundamental issues for the Home Office and the Tribunal are: is it in the public interest to deport the person, and if so, do his rights to family and private life, and his right to protection against persecution or torture abroad, outweigh the public interest in deporting him?
The best way of going about appealing deportation without a solicitor is to ensure that the Home Office and the immigration judge have as much information as possible about all the reasons the person should not be deported - his family in the UK and the difficulties his deportation would cause them, his community ties, study and work record, his value to the community, and any evidence of rehabilitation or remorse since the conviction leading to the deportation decision. Submit as much information as possible, including statements from the person and his family members, friends, work colleagues etc.
You will need to consider carefully whether to launch a public campaign against the deportation. If the offence for which the Home Office seeks to deport the person was a very serious one such as rape, murder or robbery, you will need to consider the negative publicity which a campaign is likely to generate and how this might affect the person and his family. But if the offence was relatively minor, and if there is a strong case against deportation, then a public campaign, with strong local support, which attracts favourable coverage in the local or even national press, can be invaluable in preventing deportation. (See below for organisations/websites that can assist.)
FNPs in prison
All of the above also applies to FNPs held in prisons under the Immigration Acts after serving their sentence.
If you are held in a prison and you have queries about any other issues concerning your detention, including categorisation, transfer, early release scheme etc, the Prisoners Advice Service (PAS) website has specific advice for FNPs.
You will not be able to argue on your deportation appeal that you were innocent of the crime for which you were convicted. You can only appeal against your conviction to the Court of Appeal. You will need a solicitor's help to do this. For a guide to appealing against conviction look at Prison Service Order 4400, chapter 3 (available in the prison library).
Organisations and websites for further information and advice
Bail for Immigration Detainees (BID)
A small, independent voluntary organisation that helps immigration detainees get out of detention. It receives no government funding. It has a do-it-yourself bail application notebook on its website. BID also gives telephone advice, runs workshops in some detention centres on applying for bail, and makes applications for bail on detainees' behalf in a very small number of cases.
BID's London office (020 7247 3590) assists detainees held in Harmondsworth, Colnbrook, Yarl's Wood, Tinsley House, Morton Hall, Dungavel, and immigration detainees held in prisons.
Oxford office (01865 200357) helps detainees held in Campsfield House, Brook House and Lindholme.
BID South (023 9281 6633) helps detainees in Dover and Haslar.
Detention Action (formerly London Detainee Support Group)
Aims to improve the welfare of immigration detainees, primarily those held at Harmondsworth and Colnbrook Immigration Removal Centres near Heathrow Airport in London.
Provides asylum support advice, enabling asylum-seeking detainees to access statutory housing support, to prepare for release and to enable them to apply for bail. And general practical assistance, including help in contacting solicitors, bail representatives, specialist service providers, community organisations, friends and family.
Freephone for clients 0800 587 2096.
Tel: 020 7226 3114.
Fax: 020 7226 3016.
Freemovement provides 'Signposting' to anyone in the UK subject to UK immigration controls, through a news service on immigration, asylum and anti-deportation issues. Freemovement will only signpost, advise on setting up campaigns, we will not do the work of actually setting up a campaign.
National Coalition of Anti-Deportation Campaigns (NCADC)
Has a website which contains information, contacts and advice for those fighting deportation www.ncadc.org.uk.
It can provide advice by email or by phone at its two offices:
NCADC North in Glasgow (0141 334 1333), and
NCADC South in Brighton (0127 322 0098).
Prisoners Advice Service (PAS)
PAS provides legal advice and information to prisoners in England and Wales regarding their rights, particularly the application of the Prison Rules and conditions of imprisonment.
PAS takes up prisoners' complaints about their treatment inside prison by providing free advice and assistance on an individual and confidential basis, taking legal action where appropriate.
Web: www.prisonersadvice.org.uk or www.prisonersadvice.org.uk/info/infoforeignnat.html
Tel: 020 7253 3323
Britain Undermining Rights of Foreign Prisoners, World Press Review, 2 May 2006