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Critically examine the UK’s current approach to the deportation of foreign national offenders with long term residence. Does deportation in the UK amount to “double punishment”?$9.79
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Critically examine the UK’s current approach to the deportation of foreign national offenders with long term residence. Does deportation in the UK amount to “double punishment”?
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Course
Immigration Law
Institution
The University Of Kent (UKC)
Scored a 78.
Examining the UK’s current approach to the deportation of foreign national offenders with long term residence. Does deportation in the UK amount to “double punishment”?
Critically examine the UK’s current approach to the deportation of foreign
national offenders with long term residence. Does deportation in the UK
amount to “double punishment”?
In accordance with the non bis in idem principle, an individual can only be punished
once for a crime they have committed. Under Article 4 of Protocol 7 of the ECHR,
“no one shall be liable to be tried or punished again under the jurisdiction of the
same state”1 for an offence for which they have already been convicted. However,
looking at the UK’s law on deportation regarding foreign nationals, we can see that
this principle is not respected. Under UK Immigration law, if a foreign national with
long residence has been convicted of a crime and is sentenced to more than 12
months, they are subject to automatic deportation. A foreign criminal is defined as a
person who is “not a British citizen, who has been convicted in the UK of an
offence…who has been sentenced to a period of imprisonment of at least 12
months,”2 has committed an offence that caused “serious harm,” 3 or is a “persistent
offender.”4 Despite the fact that they have often lived most of their lives in the UK,
they are seen as other in the eyes of the law as they are not UK citizens - and are
therefore treated differently, in a discriminatory way.
This essay will argue that the UK’s current approach to the deportation of
foreign national offenders clearly amounts to double punishment. It will first do so by
arguing that the individual has already served their punishment in prison – and that
any further measure is a second punishment. It will discuss the harsh impact
deportation has on an individual and their families, and how this constitutes a
punishment. The essay will then argue that deportation is a punishment as it is not a
preventative matter and there is no evidence it does much for the ‘public good,’
which the government claims. It will also discuss the general harsh attitude towards
FNOs, including the previous ‘deport first, appeal later’ approach, ‘Operation Nexus’
and how difficult it is to challenge deportation.
The deportation of FNOs is clearly a double punishment, as the individual has
already served a punishment for the offence they committed. However, the
1
European Convention on Human Rights, Protocol 7, Article 4
2
Immigration Act 2014, s.117(D)
3
Ibid.
4
Ibid.
, government has claimed that deportation is a procedural administrative matter, as
opposed to a criminal punishment – and therefore not a double punishment. This
seems convenient as therefore, an FNO’s Article 6 right to a fair trial and proper
procedures, and the Article 7 right to no retrospective criminal punishment don’t
apply. However, this is clearly a criminal punishment, and as mentioned in Uner v
Netherlands [2005], deportation constitutes a penalty that is “as severe as
imprisonment, if not more severe.”5 Deporting an individual to another country they
have not lived in for many years completely changes the course of their life. Many
haven’t even visited their country of origin since they were young, and do not have
social ties, family life, understanding of the culture, or sometimes even the ability to
speak the language well. A Jamaican FNO with a 2-year old child, being deported for
drugs offence, argued that he did not know his country of origin - having done
“nursery, reception, primary, and secondary school in England.” 6 He stated he hadn’t
been on a plane or left the UK since he was two. This can be incredibly difficult and
traumatic to adjust to and can result in a poor quality of life. For example, several
Zimbabweans who were deported in 2021 were found to be sleeping on the streets. 7
It also separates families, and even more cruelly, section 3(5)(b) of the Immigration
Act 1971 allows families of FNOs to be deported. So not only is the offender
punished, but so is their family, who have committed no crimes.
Furthermore, deportation is not the only measure taken. On top of being
removed from the UK, if they have been sentenced to less than 4 years, they may
not make an application to enter the UK for a prescribed period of 10 years. If they
were sentenced to more than 4 years, they may never be allowed to apply for re-
entry. This further supports the point that the deportation of FNOs is a double
punishment. Not only have they served prison time for their crime, but they are
removed from the UK and sent to their country of origin, which they are often not
familiar with, and must wait at least 10 years to be able to return. It seems, therefore,
that if an individual was sentenced to 3 years and was deported without permission
to enter for 10 years, that they are in fact receiving 13 years of punishment.
5
Uner v Netherlands (46410/99) 45 EHRR 14, [2005] 3 Fam CR 111, [2007] Imm AR 303, [16]
6
'Outcry Over Plan To Deport Jamaican Nationals Who Came To UK As Children' (The Guardian,
2021)
7
May Bulman and Nadine White, 'Zimbabweans Recently Deported From UK Now Homeless On Eve
Of New Home Office Flight' (Independent, 2021).
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