Foreign offenders should be firmly punished and then swiftly deported. Unfortunately, the government’s new policy is not to bother punishing them at all. Instead, when sentenced to a fixed term of imprisonment, save for terrorism, they are to be flown home at taxpayer expense without serving any prison time. If the Sentencing Bill, now before the House of Lords, is enacted without amendment, criminal justice in this country is going to get very unjust very quickly.
One can see why the government thinks it has found an attractive policy. Prisons are overcrowded and the public is understandably furious about the continuing presence of foreign criminals. The then Justice Secretary, Shamima Mahmood, sounded a defiant note last August when she announced this policy, saying “Our message is clear: if you abuse our hospitality and break our laws, we will send you packing.” I said at the time that this was an Orwellian inversion of the truth. It would have been more accurate for the government to have said that “if you abuse our hospitality and break our laws, we will pay for your flight home, and you will not have to spend any time in prison”.
This policy is unlikely to be popular once the public realises what it involves. Consider the two 17yr old Afghan asylum-seekers who raped a 15yr old girl in Leamington Spa. One was sentenced last month to ten years and eight months in prison, the other to nine years and ten months. One has been served with deportation papers already. If this new policy were in force today, they might be deported from the UK without serving any time in prison, beyond time served on remand. Shouldn’t raping a child result in prison time? If or when this legislation comes into force, it will apply to all foreign criminals in prison, so these two rapists may yet be released from prison because of it. The same is true for other rapists and violent criminals in prison now.
I say that they may be released because this legislation will only have practical effect when there is no legal obstacle to deportation. Some foreign criminals will stay in our jails; others will not have to stay at all; and some will effectively be free to choose whether to stay or go. The public may think that deporting criminals without punishing them is worth it if only to get them out of the country. But this is a false choice. There is no trade-off between punishment and removal; it is just as easy (or difficult) to deport foreigners after they serve prison time as it is before.
Deporting foreigners before they serve their sentence fails to punish them as their crimes deserve. Consider Ahmed Ebid, an Egyptian who helped smuggle almost 4,000 people from North Africa to Italy, making his own way into the UK on a small boat in 2022. He was recently sentenced by a British judge to twenty-five years in prison for his offending, which was grossly reckless about human life, with Ebid bribing officials, ruthlessly exploiting the vulnerable, and instructing an associate to kill and throw any migrants caught with their phones into the sea. Should he now be flown home to Egypt without serving any more prison time? Is that justice for his victims? Is that prudent in view of the high likelihood that he will reoffend and attempt to return to the UK?
The government’s new policy is impossible to reconcile with Britain’s historic concern to stop foreign offenders fleeing the jurisdiction and our determination to track them down abroad. On the government’s reasoning, a foreigner’s flight from Britain would seem to be self-inflicted punishment, and it would be pointless to attempt to extradite him from abroad. I say that if a man rapes children in this country, for example, and then flees abroad to, say, Pakistan, we should track him down, extradite him, try him fairly, and then punish him severely for his crimes. The offender should then be deported, if he is a foreigner, as he would be if we can strip him of his British citizenship. But we will fail his victims if we treat his flight from justice as if it were justice.
The government sometimes seems to accept this reasoning. In November last year, the government reportedly rejected a request by the Nigerian government to deport Ike Ekweremadu, its former deputy president, back to Nigeria. Ekweremadu is serving a sentence of nine years and eight months for organ trafficking under the Modern Slavery Act, having lured a young man to London to harvest his kidney for transplant. It seems that the Nigerian request was rejected because there was no assurance that he would serve the balance of his sentence if deported to Nigeria — it would not “be in the interests of justice” to deport him if this meant he escaped punishment. Well, exactly. But the government’s new approach will abandon this concern and make the UK the destination of choice for organ trafficking and a host of other offences.
What can Parliament do about this now? Clause 32 of the Sentencing Bill, which gives effect to the policy, could simply be removed. Failing this, an amendment that would temper the government’s policy has been tabled by Lord Verdirame KC and Lord Thomas of Cwmgiedd, the former Lord Chief Justice of England and Wales. An earlier version was considered at Committee Stage last month and well received across the political divide; this week, at Report Stage, it will be debated again.
The amendment has three limbs. The first would limit the clause’s application to prisoners sentenced to a term of imprisonment of three years or less. This amendment would bring the legislation in line with the Gauke Review, which had reasoned that in relation to a sentence of three years or less deportation was an adequate punishment. This was faulty logic — deportation is not punishment and foreigners can be liable for deportation without committing a crime — but it would at least have avoided a gross mismatch between the gravity of the crime and the notional punishment of deportation. The government cannot plausibly claim that deportation is an adequate punishment for raping a child, or trafficking hard drugs, especially if the offender was in any case liable to be deported, because for example he had entered the UK illegally or had overstayed his visa. It should at least accept this change and go no further than the Gauke Review.
The second limb of the amendment would require the Secretary of State, as in the recent Ekweremadu case, to consider the interests of justice, including the gravity of the offence and its impact on the victim and others, before removing a foreign offender from prison to be deported. This amendment would force the Minister to consider each case, to think about whether deporting, say, a child rapist without punishment is just. This change would make it relatively more likely that foreign offenders would be deported only after being punished, not before. Victims of crime would have grounds to challenge the release without punishment of the person who wronged them.
The government’s new policy neither strengthens border security nor cracks down on foreign offenders
The final limb of the amendment would specify that an offender is not to be released without punishment if he has already been dealt with in this way. That is, an offender who returned to the UK after being flown home would have to serve (the rest of) his sentence like everyone else. This would help to address the revolving door problem. Without this amendment, someone like Dorian Puka — an Albanian twice jailed for a string of burglaries and then deported before each time returning illegally to Britain — would never ever be punished for his repeated wrongdoing. If the worst that can happen is a paid flight home, the incentive for foreign criminals to operate in the UK is obvious. This amendment would at least help to reduce the incentive.
The government’s new policy neither strengthens border security nor cracks down on foreign offenders. If the legislation is enacted as it is, we will soon see a host of serious criminals, who deserve to serve lengthy periods of imprisonment, walk free without punishment. And foreign criminals will have even more reason to see the UK as a soft touch.
