Concern over new police powers to ensure more foreign nationals are removed from the country

The Crime and Policing Bill is currently awaiting second reading in the House of Lords and it introduces a number of new measures which expand police powers. BID is concerned that these new powers risk unfair deportation of people with limited leave to remain for minor offences.

One part of the Bill, clause 144, is especially worrying. This significantly expands existing rules so that people with limited leave to remain in the UK could now face deportation if they accept cautions for minor offences. The government has openly said (at paragraph 174 of the explanatory notes) these changes are designed to make sure “more foreign national offenders are removed from the country.”

What does this mean?

Section 103 of the Police, Crime, Sentencing and Courts Act 2022 (‘diversionary’ cautions, not yet in force) and section 22 (3D) of the Criminal Justice Act 2003 (‘conditional’ cautions) provide for  people without valid leave in the UK to be given a ‘conditional caution’ for minor offences instead of going to court. These cautions can include the condition that the person must leave the UK and not return for a set period. If they do not leave, the person can then be prosecuted for the original offence.

The new Bill would expand this provision to include people who have limited leave to remain in the UK (for example, people on work, study, or family visas). This means more people could face deportation by accepting cautions for minor offences, even if they have legal permission to live in the UK and could have been found not guilty if they had gone on to fight their case in court.

Why is BID concerned?

Although the criteria for issuing a foreign national conditional caution should mean that those issued with cautions “confirm that the offender accepts the conditions and agrees to accept the conditional caution” (section 3.6 Code of Practice for Adult Conditional Cautions), people are unlikely to fully understand the consequences of accepting a caution, especially without access to sufficient criminal and immigration legal advice. Everyone has the right to seek legal advice before accepting a caution, but people may not be made aware of this by the police and cautions are often served in high pressure environments or situations without sufficient explanation.

It is therefore likely that people will not have access to adequate criminal or specialist immigration legal advice at the time they are served the caution. Additional issues such as language barriers may increase the likelihood that individuals accept cautions without realising it could lead to deportation.

These powers could encourage discriminatory policing, as officers will have to decide who they think may be a ‘foreign national’, which risks racial profiling. It is well evidenced that racialised people are subject to discriminatory policing in the UK, and we are therefore extremely concerned that this is likely to disproportionality impact minoritised groups.

BID believes these measures threaten basic rights and fair treatment for people with legal permission to be in the UK, further exacerbating the existing risks of bypassing due process posed by the use of foreign national conditional cautions. We encourage Peers to vote to remove these measures from the Bill.