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Deportation Process
1.Overview
It can be useful to understand what happens when someone is considered for deportation. Further detail about the prison’s responsibilities, relevant forms etc. can be found in PSI 52/2011. All Foreign National Prisoners (FNPs) are referred by the Prison to the Home Office Immigration Enforcement Criminal Casework team (HOIE CC) upon sentencing. They will also refer any prisoner if it is unclear whether or not the prisoner is a British national or if the prisoner has dual nationality which includes British nationality. This should be done within 5 working days of sentence.
2. Initial assessment
The FNP’s case is assessed by the Criminal Casework’s Workflow team to assess whether it meets the criteria for liability for deportation. The Workflow team will gather any relevant documentation (e.g. immigration history from the Home Office) and will send out a form ICD 0350 to the FNP asking for all relevant information so that the case owner can consider liability for deportation effectively. This form requests details of ties with the UK such as family, children, ties with country of origin, details of time spent in the UK, etc. Criminal Casework requests that the form be completed and returned to them within 20 working days. While it is good practice to return this form within the deadline, in practice a form returned outside of the time limit will usually still be considered. It is important for a prisoner to give as much relevant information here as possible about their situation to prevent unnecessary delays later in the process. If the Workflow team decide that the FNP is liable for deportation then they will send out a letter informing the FNP. The case will then be passed to the Casework team. If the CCU decide that the prisoner does not meet the criteria for deportation they will pass the details to the relevant Immigration Control Enforcement team (ICE) (formerly known as Local Immigration Teams or LITs). This means that even if no deportation action is taken against an FNP by Criminal Casework, the ICE team may decide to pursue administrative removal, particularly if the person is in the country without the correct documents or was admitted on a temporary visa. It is very important that any FNP who is told that Criminal Casework are not pursuing his/her case is aware of the possibility that they may still be administratively removed so that they can consider their options accordingly.
3. Case consideration
Criminal Casework will allocate the case to a case owner. The earliest point that this can happen is 18 months before the earliest possible date for release (the ERS date) although in practice it may occur much later. The case owner will look at the case and consider whether or not deportation is appropriate. As part of this consideration the case owner may consider any representations made by the FNP or the FNP’s legal representative about why they should not be deported, reports from the Probation Service, reports from Social Services about the situation of any children in the case etc. The case owner will also write to the FNP requesting further information. Once in possession of all the relevant information, the case owner will make a decision on the case. A notice of decision will be sent. If the decision is to deport the prisoner, then the decision will trigger a right of appeal against deportation. The time limits on appealing against a deportation decision are very tight. If a prisoner is still serving their sentence at the time that the decision is served then the time limit for appeal is 10 working days from service of the decision. If an FNP has finished their sentence and is being held under immigration powers then the deadline for appeal is even shorter, only 5 working days from service. If the case owner decides to pursue deportation, in addition to preparing the relevant papers, they will begin to liaise with consulates to make arrangements for travel documents if required. For further information about travel documentation please see the section on contact with consulates/high commissions.
4. End of process
If a final decision has been made to deport an FNP, the case is passed to the Removals Desk to make travel arrangements for return. This involves assessing the risk presented by the FNP, booking travel tickets, arranging for any necessary transit visas and making the arrangements for security escorts. An FNP who is being deported must receive notification of removal at least 72 hours before the flight. Every effort is made to ensure that the FNP can be taken from the prison to the airport as quickly as possible but sometimes in cases where the prison is some distance from the airport or only a morning flight is available then the FNP may be taken to an Immigration Removal Centre (IRC) nearer the airport the night before their flight. If an FNP is considered to be a high risk then they may not be able to be held at an IRC and so can only be removed on a late afternoon or evening flight. In some cases FNPs will travel on the plane with escorts. Occasionally this is not possible if there is a risk to the escort in the receiving country. Sometimes a flight may be chartered to a particular country and filled with those who are being deported or removed, but more often, FNPs will be booked onto a scheduled flight. The level of restraint used during the flight (e.g. use of handcuffs) will depend on the assessed risk of the FNP. The Home Office’s responsibility for the FNP ends when the FNP disembarks from the plane in the country of origin. They have no responsibility for the onward journey from the airport. What will happen to the FNP upon arrival in their country of origin will vary from country to country, but they may be questioned by police or immigration officials upon arrival. Service of immigration documents by prison staff During the process of consideration for deportation the Criminal Casework case owners will at certain stages in the process send documents to the prison for service upon an FNP. It is a requirement laid down in the relevant PSI that any documentation received from Immigration Enforcement for service upon a prisoner must be served within 48 hours of receipt. In practice, any time limits (for example, on appeals) run from the date on which an immigration document is served on a prisoner, so prison staff should write the date of service on any documents that they serve. Some thought should be given by prison staff as to how immigration documents are served. The contents of immigration documents can have a significant impact on an FNP’s life and may cause emotional upset or stress. It is important that the process is well-managed. When documents are served is not something which should be carefully considered. As noted above, the documents must be served within 48 hours of receipt; this gives little opportunity to plan a convenient time but it is suggested that it is not advisable to serve documents on a Friday afternoon or at any other time when services are likely to be reduced, such as before a public holiday if it can be avoided. Therefore, if the 48 hour period runs up to a Friday evening, for example, it would be best to serve the documents as early as possible. An FNP may wish to speak to their legal adviser as soon as possible after service of a document and a wait of several days before they are able to do that may cause high levels of anxiety. In addition there may be fewer welfare staff available in a prison over weekends and public holidays meaning that the FNP has less opportunity of seeking external support. It is particularly important to serve notice of flights (forms ISE312 or ISE 303) promptly. It is a legal requirement that all deportees are given a minimum of 72 hours notice of the time of the flight on which they will be removed. The 72 hours must include at least two working days. Failure to give at least the minimum amount of notice would make the deportation illegal. This is the case even if the FNP consents to the removal and is happy to go ahead. Home Office documents are only printed in English. If an FNP’s levels of English are not fluent they may need assistance to understand the content of the document. Even those who do speak English may well need assistance to understand the content. Consideration should be given as to how an FNP might be assisted so that they are able to understand the content of documents served, particularly as time limits for any responses are often short. In considering this, it should be remembered that notices of deportation often include a large amount of sensitive personal information. Even with these precautions prison staff should understand that service of immigration documents can cause huge stress to FNPs and be alert to any safety or welfare implications that this may have. Many Home Office documents come with a receipt which should be faxed back to the HOIE CC with the date that the documents were served on the FNP, completed by the serving officer. It is important that this date is correct as any time limits for response or appeals run from the date of service. Contact with HOIE CC If you need to contact HOIE CC and are unable to reach your caseworker, the duty telephone line numbers can be found here [link to HOIE CC duty phone lines doc]