My TrackI will be released into
the UK
- 0%
- 100%
Early Release Scheme (ERS)
1.Overview
The Early Removal Scheme (ERS) was initially envisaged as the FNP version of HDC. Note that ERS is not itself a mechanism of removal but allows for the release of an FNP for the purposes of deportation under normal immigration law provisions. Guidance on the operation of ERS is set out in PSI 04/2013. Essentially the scheme allows that the Secretary of State may release FNPs serving fixed term sentences, who are liable to removal from the UK, up to 270 days early for the purpose of deportation or removal from the UK. This means that an eligible FNP may be released up to 270 days before the halfway point of their sentence, with the proviso that the prisoner must serve at least a quarter of the sentence (Criminal Justice Act 2003 s260(2)). When ERS was first introduced there were a number of exclusions similar to those that apply in HDC cases, but these were removed in 2008 and Prison Service Instruction 04/2013 states that: ERS is mandatory; all determinate sentenced FNPs who are liable to removal must be considered under the scheme, subject to eligibility checks outlined in section 2. Note that ERS does not apply to those prisoners serving an indeterminate sentence for public protection or a life sentence, but see notes on the TERS scheme below. Prisoners can only be removed under the ERS if Immigration Enforcement is able to give effect to their removal during the ERS eligibility period (which ends at the half way point of the sentence). The HOIE CC should confirm to the prison whether an FNP can be removed during the ERS period.
2. Outstanding Criminal Charges
Release under ERS will be refused where a prisoner is facing outstanding criminal charges or has a further term of imprisonment to serve, for example in respect of a confiscation order (PSI 04/2013 paras 2.5 – 2.7). Previously there was a bar to the ERS for those FNPs who were required to undergo an enhanced risk assessment. However, since February 2011 the need for an enhanced risk assessment for prisoners convicted of sexual or violent offences has been removed .
3. Exceptional Circumstances
The Prison Service can in exceptional circumstances refuse release under ERS. Examples of exceptional circumstances may include: - Clear evidence that the prisoner is planning further crime including plans to evade immigration control and return to the UK unlawfully; - Evidence of violence or threats of violence, in prison, on a number of occasions; - Dealing in class A drugs in custody; - Serving a sentence for terrorism or a terrorism related offence; - Other matters of similar gravity relating to public safety. If a prison is considering releasing a prisoner convicted of terrorism related offences then the NOMS Extremism Unit should be consulted before any decisions are made (PSI 04/2013 para 2.12). Also, where the governor considers that an FNP’s early removal ‘may seriously undermine public confidence in the scheme’ the case must be referred to the Chief Executive of NOMS who will make the final decision. For example, this will include FNPs who have been involved in a notorious crime. Prisoners may complain about decisions to refuse them release under ERS via the Prison Service’s complaints procedure.
4. Re-entering the UK
Any prisoner released and removed under the ERS who returns to the UK during the currency of their sentence is liable to be arrested and required to serve a period equivalent to the period between the date they were removed from the UK and the normal release date, or until the sentence expiry date, whichever is shorter. Those removed under the ERS are subject to a bar on re-entering the UK, usually for a minimum period of at least 5 years. Even after the expiry of the bar, applications for entry to the UK are highly likely to be refused due to criminal record and bad character.