Aliens Behind Bars: The Punishment and Human Rights of Foreign National Prisoners in England & Wales

Guest post by Irtiza Majeed Sheikh. Irtiza is an M.Phil./Ph.D. scholar in Criminology at Middlesex University London. Irtiza’s research investigates the stringent legislation that may be interpreted as controlling foreign national prisoners in England and Wales. Having previously worked at the International Police Organisation (INTERPOL), he has previously researched wide-ranging issues including migration and counterterrorism. Irtiza holds a BA in Criminology and an MSc in Criminology with Forensic Psychology (Distinction) which he completed as a Dean’s Academic Excellence Scholar from Middlesex University London.

In the year 2000, there were 5,586 foreign national prisoners in England and Wales. However, by March 2021, this figure increased to 9,850, representing a rise of almost 76% in the number of foreign national prisoners in the past two decades. As of March 2021, the foreign national prisoners represent approximately 13% of the total prison population in England and Wales.

Foreign national offenders

Home Office defines the foreign national offender as someone who is not a British citizen and is convicted in the United Kingdom (UK) of a serious criminal offence. The number of deportations related to foreign national prisoners also appears to be increasing. Almost 50,000 foreign national offenders have been deported from the UK between 2010 and 2020 with approximately 4,700 foreign national offenders deported in a year between March 2019 to March 2020. The Ministry of Justice prison population projection shows that the prison population of England and Wales is expected to grow to 98,700 by the year 2026 – an increase of more than 25% from the current total of 78, 328. Considering this projection, the growing number of foreign national prisoners in the past two decades, and the increasing global mobility, it becomes important to research this group of prisoners. It becomes equally important to ascertain the reasons behind the exponential rise and to research the legislation and policies pertinent to the said group of prisoners.

Legislation and policies

Whilst in the last two decades, the successive UK governments have introduced a number of legislation and policies pertinent to foreign national offenders, it may not be incorrect to say that the two significant pieces of legislation surrounding foreign national offenders are the UK Borders Act 2007 and the Hubs and Spokes policy 2009. The UK Borders Act 2007 enables automatic deportation of foreign national offenders sentenced to a prison term of at least 12 months unless there is evidence that the deportation will breach their human rights. Similarly, the Hubs and Spokes policy of 2009 is another crucial step taken by the then UK government that may be interpreted as controlling foreign national offenders. The said policy foresaw the creation of special prisons for foreign national prisoners with immigration officials implanted in these institutions to carry out administrative functions, including the facilitation of deportation orders. This policy also enabled authorities to detain foreign national prisoners beyond the length of their sentences to facilitate deportation. This restructuring of penal policy to control and punish foreign national offenders arguably represents an example of crimmigration - a term widely used to explain the convergence of criminal law with immigration. Given this stringent legislation and increasing number of deportations, it is worth asking  how, and to what extent, the traditional purpose for punishment (that is deterrence, retribution, incapacitation, and rehabilitation) are applicable to foreign national prisoners?

Has deportation replaced rehabilitation?

From a human rights and penological perspective, the core objective of prison management should be the facilitation of the rehabilitation and reintegration of prisoners. This clarity of purpose, however, seems to have become skewed and subordinated within foreign national only prisons. Prison inspections, empirical studies and academic scholarship all point to the restricted rehabilitation support and ‘erosion of the rehabilitative ideal’. As a result, scholars are increasingly asking how deportability shapes the way foreign-national prisoners do time. Arguably, when deportation becomes the dominant political and practical function, there seems to be a correlating subordination or removal of rehabilitation and resettlement functions. Empirical research focusing on foreign national prisoners raise pertinent questions about their prison experience and broader issues in relation to the traditional purposes of punishment, such as, how is ‘foreignness’ transforming punishment in the criminal justice system of England and Wales? Are we witnessing, as several scholars have suggested, the emergence of a two-tiered system of criminal justice that sorts people on the basis of nationality?. How is deportation redefining what punishment means for foreign national offenders and how  is it experienced?

Given the apparent emergence of a bifurcated system of justice that is directed at foreign nationals in the UK, it is important to consider how this particular aspect of British penalty is subjectively experienced ‘on the ground’. My research, therefore, urges a rethinking of ways in which we consider punishment. How can we make sense of punishment when in the English and Welsh criminal justice system a criminal conviction for foreign nationals – including long term residents – may not only lead to incarceration but may also extend to a different nation altogether, as in the case of deportation? And what becomes of the traditional purposes of punishment, including rehabilitation and reintegration, when the governments’ focus is on the deportation of foreign national prisoners? As much as these questions need rethinking, the carceral experiences of foreign national prisoners portray a rather gloomy picture. Existing literature confirms that foreign national prisoners are more likely to harm themselves and die by suicide than the general prison population. Language barriers, difficulty maintaining family ties, and uncertainty over immigration concerns are three major contributing factors. With their rehabilitative needs largely ignored, which ultimately makes it difficult for them to spend their time in prison and deprive them of the much-needed education and healthcare support, it can be argued that the traditional purpose of punishment is failing to meet its objective.

Research surrounding foreign national prisoners and the deportation regime is ultimately the need of the hour. Particularly, the questions surrounding their differential treatment in the criminal justice system and their restricted access to rehabilitative support in English and Welsh prisons need answering.  What also needs to be investigated is the notion whether, and to what extent, the classic rationales for punishment (that is deterrence, retribution, incapacitation, and rehabilitation) are applicable to foreign national prisoners or whether their incapacitation is a mere practice facilitating deportation.

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How to cite this blog post (Harvard style) 

Majeed Sheikh, I. (2022) Aliens Behind Bars: The Punishment and Human Rights of Foreign National Prisoners in England & Wales. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/05/aliens-behind [date]