The recently leaked government immigration proposals indicate that European nationals who commit crime in the UK will be subject to the same automatic deportation rules as non-European nationals after Brexit.

The UK Borders Act 2007 imposes a legal duty on the Home Office to bring deportation proceedings against any foreign national convicted of a crime and sentenced to 12 months or more in prison. These are referred to as “automatic deportation”: see section 32 of the UK Borders Act 2007. There is currently an exception for those resident under EU law (section 33(4)) but this will end with Brexit when EU law ceases to apply.

12 month sentences are imposed for a whole range of crimes, including ‘moment of madness’ offences such as getting into a fight in a pub, or on the street, or for breaching an ASBO.

A Ministry of Justice response to a Freedom of Information request suggests that at least 26,000 European nationals a year will face deportation proceedings as a result of this change in the law. To put this in perspective, the Home Office deported just 6,171 people last year and even less in each of the 5 years previous to that. [Note: the Ministry of Justice has since clarified that the figures released on European nationals convicted of a criminal offence that would trigger deportation include UK citizens. I am trying to establish the number of non-British EU citizens affected and will look to update this piece with the correct figures.]

The leak

In amongst the economic and social self-harm contained in the government proposal, the Home Office sets out its vision for the deportation of European criminals somewhere towards the middle of the article:

4.45 Leaving the EU allows us to create a single, consistent approach to criminality across the immigration system. Currently, EU citizens are subject to different thresholds for criminality than those for non-EU nationals. EU rules require that a person’s conduct must represent a genuine, present and sufficiently serious threat before he or she can be deported. They do not specify the length of imprisonment or specific behaviour which may result in refusal of entry, exclusion or deportation of an EU citizen from the UK. UK rules for non-EU nationals are both more specific and stricter…

4.46 The application of the EU public policy test is less certain and predictable in practice than we would like. We therefore intend to replace the EU test with the current UK rules, which apply to non-EU nationals, as soon as possible, to improve the safety and security of the UK.

Where the Home Office states that the policy test is ‘less certain and predictable in practice’ than they would like, they essentially mean that it is too hard to deport European nationals under current law.

The current regime

As the law stands today, it is much harder to deport Europeans than non-European nationals. For an in-depth analysis see our previous blog posts:

• What is the law on the deportation of non EU foreign criminals and their human rights?
• What is the law governing the deportation of EU nationals?

The test which the government needs to meet for EU citizens is set out in Directive 2004/38 at Articles 27 and 28. It is risk-focussed, and forward-looking, with the Home Office needing to show that an individual represents ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

The bar is even higher for permanent European residents, where the government needs to show that there are ‘serious grounds of public policy or public security’ to justify expulsion, and ‘imperative grounds of public security’ for those continuously resident for over 10 years.

Non-European foreign nationals who commit offences, however, do not have anything like as much legal protection from deportation. Essentially, if they receive a custodial sentence of 12 months or longer following the commission of a crime, the individual concerned will usually face deportation proceedings.

The law does make certain exceptions for those who have been in the UK for many years, or who have ongoing relationships with partners or children who would not be in a position to accompany the deportee home, but those appealing against a deportation order will usually face an uphill battle to show that they come within those exceptions.

Impact of the most recent proposals

If the government follows through on the steps set out in this most recent leaked document, European nationals who commit crimes and are sentenced to imprisonment for 12 months or longer will, after Brexit, be subject to the deportation provisions contained in the UK Borders Act 2007. This is confirmed in the document:

4.47 Immediately after exit, we propose that, if EU citizens and their EU and non-EU family members subsequently commit a crime in the UK, the same deportation criteria currently applying to non-EU nationals will apply.

This will have far-reaching implications on a number of fronts.

Individuals who are subject to deportation proceedings can be detained under immigration powers, for example, which are wide-ranging and with no time limit. At any one time, 2,000-3,500 migrants are held under immigration powers in the UK detention estate.

It is common, and has been since the foreign national offender prison release scandal in 2006, for foreign prisoners to be detained after their sentences are completed. They may apply for bail, but they will normally be kept under lock and key until their deportation appeal has run its course (if they have chosen to make one), or they are deported.

As well as the cost of immigration detention (estimated to be £86 per day per individual), the prison estate is almost at full capacity: there is simply no space to accommodate the number of prisoners the government would need to detain. The number of additional European deportees to be kept in prison following the completion of their sentences each year would be over a third of the entire capacity of the prison system.

This proposal is also very unlikely to play well in the ongoing divorce negotiations, and it would not be surprising to see a concomitant reduction in the legal protections afforded to British criminals in Europe fighting deportation back to the UK.

Has the government thought about any of this? Possibly not (and might not care much if it had). But the current proposals suggest that, in 5 years or so, we will probably be deporting people from our shores on a scale not seen since the age of the penal transportations.

That does not suggest a society in rude health.