A look at the upcoming changes to the early removal scheme for foreign national offenders

The government has proposed changes to the early removal scheme for foreign national offenders in what is possibly the most significant overhaul to the deportation process since the changes made in the wake of the foreign prisoner ‘scandal’ in 2006. It comes hot on the heels of the expansion of the ‘deport first, appeal later’ process to 23 countries, also announced last month. 

The government’s stated aim is to reduce prison overcrowding – foreign national offenders make up 12% of the prison population – and to increase the number of foreign criminals it deports. 

What are the proposed changes?

The Early Removal Scheme was introduced in section 260 of the Criminal Justice Act 2003 and allows for the removal or deportation from the UK of foreign national offenders at an earlier point in their sentence than would otherwise be possible.

In May the Independent Sentencing Review published its final report setting out “proposals to address prison and probation challenges and support victims”. Chapter six considered approaches to Foreign National Offenders and recommended that earlier removal was facilitated. The report stated:

Given the considerable pressures on the prison population, the Review recommends that the Government considers bringing forward the ERS removal point from 50% to 30% of the custodial term and an expansion of the removal window beyond 18 months, to increase the speed of removal of FNOs from the prison system. Any changes should take account of how long
the Home Office requires to deport FNOs, which is currently on average between 3 and 6 months.

For FNOs whose period in custody would be so short that deportation itself would be sufficient punishment, the Government should move to deport them as soon as operationally possible. The Review considers that FNOs sentenced
to three years or less, who would serve the equivalent of a short prison sentence, would fall into this category. The Government should consider whether any changes to sentencing or release arrangements would be necessary to enable this to happen. Consequential changes needed to deportation law should be considered to ensure that there is no gap in powers arising out of the Review’s recommendations to secure the swift deportation of eligible FNOs. The Government should also identify measures to strengthen the referral process through which criminal justice agencies inform immigration officials of FNOs serving sentences in the community, to ensure deportation at the earliest possible opportunity.

Following on from this, the government has proposed that foreign national offenders who do not object to being removed will be eligible for removal 30% through the custodial element of their sentence (currently it is set at 50%), and up to four years before their release, rather than the current 18 months.     

The changes are being effected through the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2025 which was laid on 25 June 2025. This will amend section 260 of the Criminal Justice Act 2003 which sets out that “the Secretary of State may remove the prisoner from prison under this section at any time after the prisoner has served the minimum pre-removal custodial period”.

It is the definition of “minimum pre-removal custodial period” which is to be amended by the Order. Previously, this was the longer of one half of the custodial period or the custodial period less 545 days. After the changes come into force, the minimum pre-removal custodial period will be the longer of one third of the custodial period or the custodial period less four years, in line with the recommendations by the Independent Sentencing Review.

The changes are due to come into force on 23 September 2025.

The House of Lords’ Secondary Legislation Scrutiny Committee published a report in July 2025 in which they drew this Order to the special attention of the House. The committee raised several concerns, including the expression of regret that there had not been a full review of previous similar changes. The committee also set out additional information from the Ministry of Justice which it said could have usefully been included in the explanatory memorandum, including background information on Foreign National Offender sentences and the treatment of those who have been deported in their home countries.

This change, however, is but an entrée: the government says it will serve up an even meatier reduction, so that foreign criminals (who wish to be removed) can effectively be deported immediately upon sentencing. This larger reduction will require changes to primary legislation which “will be brought before Parliament in due course”.

Get Out of Jail Free Card?

It appears that Foreign National Offenders will be given the option, if they agree to return to their country of nationality, to avoid any sentence of imprisonment. 

Note that this is not a situation where a foreign criminal will be returned home to serve out their sentence of imprisonment (this would involve a seldom-used Prisoner Transfer Agreement (PTA)). The Independent Sentencing Review set this out explicitly:

Following deportation, FNOs removed via the ERS are not subject to any further custody on arrival in their home country. Their custodial sentence is therefore served exclusively in the UK, and deportation itself constitutes the main form of punishment for criminality.

The proposal seems to suggest that, even if you are convicted of an extremely serious offence – other than those serving life sentences – you could, if you are a Foreign National Offender, effectively be set free in your home country and would not be punished.

Will this happen? 

On paper this plan is attractive to the government. 

It is likely that many Foreign National Offenders than would otherwise have been the case will opt for deportation in exchange for the extremely large carrot of being able to avoid prison, especially those staring down the barrel of multi-year incarceration. It is likely that this would both reduce the prison population and improve the numbers being removed.

But politically, is this plan going to survive first contact with reality? 

When the Daily Mail starts publishing social media posts from foreign criminals sipping cocktails on a beach in their homeland following removal, is this going to fly? 

Of course, when sentencing, the judge would have listened and factored into the term of imprisonment the impact on the victims, the debt owed to society, that the individual should be punished. How are victims, prosecutors and judges going to feel about this? 

In order to be able to politically viable, the state might be tempted to argue in this context that deportation is the punishment as stated by the Independent Sentencing Review, finally acknowledging, contrary to its long-established position (as endorsed by the ECtHR in Maaouia v France (2000)), the punitive – rather than administrative – nature of deportation.

Perhaps this is a bargain the British public are prepared to strike.