July 23 2024
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Foreign national prisoners: super-selectivity and stupid policies

Foreign national prisoners: super-selectivity and stupid policies

REPORT: Detention Advice Service’s (DAS) 20th anniversary conference, which took place last week, went ahead under the title of ‘Foreign national prisoners: Meeting the challenges ahead’, writes Gemma Lousley. From the earliest of the planning stages, we knew that we wanted to give the organisations, agencies and individuals who attended the opportunity to discuss the difficulties faced by foreign nationals in prison; we were also clear that we wanted to provide a positive focus, and look at how these could be addressed.

  • You can read Gemma Lousely and Dr Adeline Trude on access to justice for foreign national prisoners HERE.
  • Pic: Barbed wire by Terry Freeman.

We knew, however, that we were faced with a daunting task. Foreign national prisoners are such a marginalised, misrepresented and unpopular group, that the problems they face are both many in number, and significant in nature.

L-R: Jon Robins (JusticeGap); Nigel Caleb (DAS); Sarah Campbell (BID); Jacqui McKenzie (Hibiscus)

Super selectivity
Juliet Lyon, director of the Prison Reform Trust, set out one of the key difficulties in her opening address to the conference, as she argued that foreign national prisoners are seen primarily through the prism of immigration and deportation, at the expense of welfare and rehabilitation considerations. She highlighted that, in 2004, when the Prison Reform Trust published its report Going the distance, there was a sense of optimism that its recommendations on meeting the range of needs of foreign nationals in prison would be taken forward – an optimism that was soon after scuppered by the ‘crisis’ of 2006, when it was revealed that more than 1,000 foreign national prisoners had been released without being considered for deportation. ‘From this point on, it seems as if they have been seen as a group of people who are unwelcome.’

L-R: Jerome Phelps (Detention Action); Steve Symonds (ILPA)

To some extent, her assessment of government policy was echoed by the statutory agencies responsible for the management of foreign national prisoners. Rob Whiteman, chief executive of the UK Border Agency (UKBA), spoke of the government’s policy on immigration as one of ‘super selectivity’, emphasising that within this, foreign national prisoners are largely seen as a category of people who should be deported. Pat Baskerville, Head of Offender Safety, Rights and Responsibilities at the National Offender Management Service (NOMS), also set out the focus of official policy on the removal of those eligible for deportation as early as possible in their sentence, or where this is not possible, at or very soon after the point of sentence expiry.

She disputed, however, the suggestion that this has resulted in their wider needs being ignored, highlighting that they are ‘first and foremost prisoners’. Indeed, she emphasised the absence of central direction and prescription from NOMS to individual prisons on the management of foreign nationals as indicative of the belief that they should be treated as individuals, with their specific needs assessed and addressed on a case-by-case basis. The presentation from Martin Kettle, policy lead on foreign national prisoners at the Prisons Inspectorate, raised some questions about how well this approach is working in practice, however, as he explained that foreign nationals’ perception of their experience in prison is poorer than that of UK nationals across a range of indicators.

A stupid policy
In light of this, it is worth noting that the last major review of this area, published by the Prisons Inspectorate in 2006, highlighted that whilst foreign national prisoners are a diverse group, ‘they have a recognisable cluster of specific needs … language, family links and immigration’. Addressing these clearly identified needs through the implementation of a coherent and robust national strategy does not seem to us to be at odds with the recognition of the specific needs of individual prisoners; rather, we would suggest that it is an essential part of it.

The conference’s afternoon session, which looked in detail at a number of specific challenges faced by serving foreign national prisoners and those who are being held post-sentence, also proposed concrete solutions. Nigel Caleb of DAS argued for the ready availability of immigration advice for all foreign nationals in prison, in line with the Prison Service’s own guidance, and for deportation and associated papers served by UKBA – which are currently written entirely in English – to be translated into prisoners’ own languages. Following this, Steve Symonds of the Immigration Law Practitioners’ Association (ILPA) proposed scrapping the automatic deportation provisions of the UK Borders Act 2007, ‘a stupid policy position which does not give any more power to deport anybody, but which prevents sensible consideration of the circumstances of every individual’.

Sarah Campbell of Bail for Immigration Detainees (BID) argued for an end to the separation of families through immigration detention, focusing on the distress and harm caused to children of foreign national ex-offenders when their parents are detained following completion of their prison sentence. Jerome Phelps of Detention Action proposed an amendment to UKBA policy to allow for a balanced risk assessment of the prospects of deportation taking place against the risk of reoffending and absconding, to avoid the long-term detention of foreign national ex-prisoners who cannot be deported and who are, ultimately, released. Finally, Jacqui McKenzie of Hibiscus called for foreign national women prisoners, who constitute 15% of the female prison population, to be included in the mainstream debate about women in prison, and for promotion of the use of non-custodial sentences for them.

There is, no doubt, some way to go before many of these changes see the light of day. Hostility towards and outrage about foreign national prisoners are never far from the pages of the press or the lips of politicians, and it would be foolish to underestimate the barrier this poses to the implementation of sensible policy changes that would allow for the fairer, more effective treatment of this group. It would be foolish too, however, to overlook the attendance at the conference of a huge range of organisations and individuals – from prison and probation staff, to representatives of monitoring bodies, NGOs working across the fields of criminal justice and immigration, academics and researchers, and legal practitioners – and the power to effect change of such an alliance.







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