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EU deportation appeals do not include consideration of prisoner transfer


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The European Framework Decision 2008/909/JHA has replaced the framework previously set out in the Council of Europe Convention on the Transfer of Sentenced Persons, itself supplemented by the Protocol of 18 December 1997, to provide the framework within which a request may be made to another Member State for the transfer of an EEA national sentenced in the United Kingdom to serve that sentence in his own country. In the United Kingdom context, it is a precondition for making a transfer request that there be in place a deportation order. A decision to make a deportation order is not a decision to transfer a serving prisoner to another Member State to serve his prison there and so in any appeal against a decision to make a deportation order the Tribunal is not concerned with whether there is any legal impediment to such a transfer taking place.

Where the personal conduct of a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the fact that such threat is managed while that person serves his or her prison sentence is not itself material to the assessment of the threat he or she poses. The threat exists, whether or not it cannot generate further offending simply because the person concerned, being imprisoned, has significantly less opportunity to commit further criminal offences.

Glad that is cleared up. Really grim set of facts involving an appellant described by the sentencing judge as “a man capable of inhuman depravity” and “a cold, depraved, calculating killer”.

Source: Restivo (EEA – prisoner transfer) Italy [2016] UKUT 449 (IAC) (9 September 2016)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.