Two aspects of policy
530. Although the policy on deportation of foreign
offenders is largely outside the scope of our inquiry, we do want
to draw two conclusions about future policy.
531. Firstly, there are at the moment two circumstances
in which a person can be deported following a criminal conviction:
where the court has recommended deportation and the IND
has decided to pursue this; and where the court has not made a
recommendation but the IND has nevertheless deemed deportation
to be "conducive to the public good".
(Foreign criminals might be removed instead of deported if they
entered illegally or have breached conditions of their leave.)
Between April 2005 and March 2006 the Crown Court made 1,528 recommendations
and 160 of the foreign nationals identified as having been released
without consideration for deportation had had a court recommendation
532. Although a criminal court can recommend deportation
when it is sentencing a foreign national, the decision to deport
always rests with the Home Office regardless of whether or not
there is a court recommendation. We do not see the benefit of
court recommendations for deportation, and recommend that they
should be abolished. All deportations should be considered by
the Home Office solely on the grounds of whether deportation is
conducive to the public good.
533. Secondly, the Government has announced that
it wishes to consult on changes to the law to create a presumption
of in favour of deportation of some foreign national criminals.
On 3 May the Prime Minister said "I think that it is now
time that anybody who is convicted of an imprisonable offence
and who is a foreign national is deported".
The then Home Secretary, Rt Hon Charles Clarke MP, set out a rather
more nuanced proposal less than an hour later:
I want to state clearly that where deportation
can properly be considered, the clear presumption should be that
deportation will follow unless there are special circumstances
why it cannot. We will consult on whether that presumption should
be made statutory through primary legislation. Such a presumption
would include all criminals sentenced to imprisonment, all those
convicted for an offence listed in an order under section 72 of
the Nationality, Immigration and Asylum Act 2002, all those on
the sex offenders register, repeat offenders and, of course, all
those recommended for deportation by the sentencing judge. We
believe that there is a strong case for extending those proposals
to any individual who is convicted of an imprisonable offence,
whether or not a sentence of imprisonment was actually given,
and we will consult on that too.
Those proposals would replace the current practice
of considering for deportation only non-European economic area
nationals with a sentence of 12 months or more; EEA nationals
with a sentence of 24 months or more; cases in which the individual
has three lesser convictions in a five-year period; and all cases
in which the sentencing judge has recommended deportation.
534. The following week the Prime Minister was referring
to a presumption for "foreign prisoners",
and then on 17 May the phrase he used was "the vast bulk"
of foreign prisoners.
The current Home Secretary told us "the presumption should
be that anyone who is here who is a foreign national who does
not, in return for the privileges and rights of being in this
country, observe our laws and commits a serious offence for which
there is a custodial sentence given should face deportation."
535. We support the proposal to create a presumption
in favour of deportation of foreign nationals who are serious
criminals. In practice there will be those for whom deportation
is inappropriate, for example those whose offences may only just
cross the threshold of seriousness but who have lived otherwise
law-abiding lives in this country for a long time and who have
an established family in the United Kingdom. But the principle
should be established that in all such cases the offender should
have to make their case as to why they should not be deported.