Post by Mary Bosworth, Centre for Criminology, University of Oxford. A version of this post, entitled 'Why it's difficult to deport foreign offenders,' was first published on The Conversation on 23 October 2014.

Once upon a time we knew an election was looming when talk turned to crime. ‘Tough on crime, tough on the causes of crime’ Tony Blair famously promised in the 1997 Labour Party Manifesto, before finally breaking 19 years of Tory party rule. These days, the political impact of and interest in talking about crime appears to be increasingly replaced by matters of immigration and Britain’s relationship to Europe. A key exception, however, exists in the figure of the foreign national offender, who represents a familiar folk devil repurposed for this era of mass migration. The political fallout from this week's National Audit Office (NAO) report into Managing and Removing Foreign National Offenders and the media coverage of it captures this duality: as the treatment of foreign national offenders is presented both as a failure of sovereignty and as a growing criminal threat.

Source: The Independent
Most of the media accounts and indeed the NAO report itself not only risk overstating the nature and scale of the issue, but, more importantly, over-simplifying the legal and ethical framework in which citizenship has become a risk factor in policing, courts, imprisonment and resettlement. Since the last foreign national prisoner crisis in 2006, which lead to the resignation of Charles Clarke as Home Secretary, legislative and policy reforms have expanded the oversight and regulation of foreign citizens in all stages of the criminal justice system. As people enter the UK, or when they obtain a visa, Border agents can check their criminal records. Within the country, police are asked to demand identity documents. Courts can apply deportation orders to a foreigner’s criminal sentence, while in prison nationality is routinely obtained upon arrival. All of these practices, which exist alongside other, administrative ones like landlord, employer and student checks, are designed to establish identity credentials necessary for expulsion.

Yet, the NAO asserts, expulsion does not always happen and even when it does, it may not occur in a timely fashion. From the NAO’s perspective, as the office charged with scrutinising public expense, such matters are inefficiencies, ‘barriers’ and ‘challenges’. They are irritants of ‘cultural’ differences among arms of government and matters that need to be resolved through ‘joined up’ government and a better use of technology. No more faxing they admonish.

To be sure, there are cultural differences between the Home Office and the Prison Service. The archaic use of fax machines and the development of separate IT systems no doubt does mean some cases fail to be addressed, as anyone who has sought to obtain a new passport or change their visa status would attest. It is not just in dealing with offenders that the British government may not always be the most technologically savvy.

While the administration might have an easy (albeit costly) solution, the differences between the parts of government are more intractable as they relate to profoundly different goals. The Prison Service seeks to “keep those sentenced to prison in custody, helping them lead law-abiding and useful lives, both while they are in prison and after they are released.” This statement of purpose does not (yet) differentiate among prisoners by nationality. The Home Office, with its range of responsibilities, has no such clear statement. For those working in immigration enforcement and removals, focusing on detention and deportation, matters are only marginally clearer as their commitment to safeguarding borders and managing migration has to be balanced against human rights protections.

Source: The Guardian | Photo: David Levene
Whereas the NAO report and much of the political discourse present barriers to the removal of foreign offenders as irritants, human rights protections remain important principles that the UK rightly champions at home and abroad. Even seemingly banal issues like travel documents and prisoner transfer agreements capture important legal and moral questions of due process and human dignity. We cannot and should not send people back to places without being sure that is where they are from. Likewise, although legislation is increasingly doing away with the requirement that a serving prisoner agrees to his or her transfer, the kinds of reasons that might prevent someone from going willingly―like family ties, economic opportunities and, above all, conditions in the prisons of their birth country―are not insignificant. They are, instead, precisely the reason why it is logistically and ethically difficult to expel people, no matter what they have done.  Is there anything Britain can or should be doing about these matters? The Facilitated Returns Scheme, for instance, which offers financial incentives, the NAO points out, used to be more successful, before its budget was slashed. Maybe returning home with some money would actually make a difference.

Notwithstanding David Cameron’s confident statement that ‘the buck stops with me,’ the NAO report reminds us that the governments are limited in their capacity to alter current practice and that politicians frequently under-estimate the complex legal and procedural framework in which the Home Office, Ministry of Justice and Foreign Office are operating. Nation states evidently have the right to determine who is allowed to enter and remain. That is a matter of law. Such rights, however, are not absolute, since they are subject to Human Rights responsibilities and protections. Trying to enforce a blanket policy on the treatment of foreign offenders over-simplifies these matters and overlooks their specific needs and experiences.

It is not always clear that citizenship should trump other matters. Nor, until recently, has society expected it to do so. We cannot, after all, deny re-entry to the UK of British citizens convicted at home or abroad, and nor can we (any more) send them away to populate colonies. As the debate over immigration intensifies before the next election, the danger is that we will lose sight of the principles at stake. Human rights are not just for foreigners. They protect us all. As we remove them from others, whether in a bid for electoral expediency or financial efficiency, we put the rights of everyone at risk.

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How to cite this blog post (Harvard style): Bosworth, M (2014) Deporting Foreign National Offenders. Available at: http://bordercriminologies.law.ox.ac.uk/deporting-foreign-national-offenders/ (Accessed [date]).