It is a truth universally acknowledged that the rights of foreign criminals are routinely privileged over those of the individuals they have offended against, as well as the wider public interest – or so many press commentators would have us believe. The reality, predictably, is rather different. For foreign nationals held in prison, accessing justice and exercising rights is not, in fact, easily done; and as significant budget cuts take hold in the prison estate, and the government’s legal aid ‘reforms’ loom ever closer, it is questionable how often, in the future, it will be done at all.
Foreign nationals convicted of a criminal offence often find themselves in a very different position to British citizens when they are sentenced to a period in custody. As well as serving the sentence handed to them by the criminal courts, many will face the threat of deportation action. Following the implementation of the UK Borders Act 2007, non-EEA nationals sentenced to a year or more in prison face automatic deportation; deportation also applies to non-EEA nationals who have received shorter sentences that, over a five-year period, total 12 months or more. EEA nationals who have received a sentence of two years or more, shorter sentences totaling two years or more over a five-year period, or a one-year sentence for a sexual, violent or drug offence, will also face deportation. As well as being triggered, therefore, by a very broad range of offences, deportation action applies to all those classed as foreign nationals, including those who are long-term UK residents, and whose family, friends and connections are entirely in this country.
The effects of deportation are grave: those who are deported from the UK are excluded from the country until the deportation order is revoked, which may be many years later, and must apply for revocation before they are able to seek an entry visa again. It is clearly important, therefore, that independent immigration advice should be readily available to foreign national prisoners, so that they are able to gain a full understanding of their situation and, if they wish, exercise their right to challenge the action being taken against them. Effective from November 2011, Prison Service Instruction 52/2011, on ‘Immigration, repatriation and removal services’, recognises this as it highlights that ‘it is important that prison establishments ensure that both UKBA and independent immigration advice are available for prisoners to access when it is required’.
In practice, however, such advice is rarely available – inspectorate reports, for instance, often find prisons wanting in this area. The charity I work for, the Detention Advice Service (DAS), is the primary provider of immigration advice in prisons. We work directly in 14 of the more than 130 prisons in England and Wales, which indicates the scale of the problem. Moreover, the service we provide faces an uncertain future. Currently, a proportion of our funding comes from the prisons we work in, but we are starting to feel the effects of prisons making significant cuts as a result of their depleted budgets.
Alongside this, the government’s proposed cuts to legal aid, due to be implemented in April 2013, will take removal and deportation cases out of the scheme, so that foreign national prisoners unable to pay for legal representation to challenge deportation action – the significant majority – will, quite simply, be unable to access it.
In its green paper on legal aid, the government set out its justification for these proposals: ‘As the [Immigration and Asylum] tribunal is designed to be user-accessible, and interpreters are provided free of charge for hearings, we do not consider that the class of individuals in these immigration cases will be incapable of navigating their way through the tribunal system. We do not consider that individuals in these immigration cases are likely, in general, to be particularly vulnerable.’
The idea that foreign national prisoners should be able to navigate the complexities of immigration law and the system that upholds it by themselves is utterly wrongheaded. Quite apart from the fact that vulnerability is a defining characteristic of many of those held in prison – as a result, for instance, of mental health problems, drug and alcohol dependency, and poor physical health – there is the very significant barrier of language. There may well be interpreters provided ‘free of charge for hearings’ – but how will this help foreign nationals to understand the finer points of immigration law and prepare a challenge to their deportation, especially whilst they are held in prison?
At our annual conference held in December last year, which was attended primarily by prison staff, the language barrier for foreign nationals held in the prison system was a recurring concern raised by delegates, particularly in relation to the long, complex legal papers that are served on prisoners – entirely in English. Both prison staff and DAS advice workers regularly come across prisoners who simply do not understand their situation, let alone how to contest it. Given current worries about the quality of UKBA decision-making on deportation action – a recently published report by the Independent Chief Inspector of UKBA on the management of foreign national prisoners highlighted that, between February 2010 and January 2011, almost a third of appeals lodged against decisions to deport were successful – restricting the ability of foreign national prisoners to mount challenges should be considered all the more serious.
Irresponsible reporting by the press and populist pandering by politicians across the parties has helped to ensure the place of foreign nationals as one of the most unpopular groups in our prison system. Though they now make up around 13% of the prison population, they are also one of the most marginalised and vulnerable groups, whose needs and problems are rarely considered a priority. If we continue down the current path, it may not be long before they make the jump from merely sidelined and isolated, to invisible and forgotten.