Themes in immigration policy: preventing re-offending and the ‘public interest’

25.02.2014 – We continue our look at the role of the ‘public interest’ in deportation decisions. In this post we consider the weight given to attempts made to prevent re-offending in the decision making process.

Preventing re-offending

In addition to the expression of public revulsion and deterrence, the third principle facet of the ‘public interest’ in deporting foreign national criminals is that it prevents the particular individual from re-offending: OH (Serbia) v SSHD [2008] EWCA Civ 694 at 15. The risk of re-offending is a factor in the balance, but, for very serious crimes, a low risk of re-offending is not the most important public interest factor: N (Kenya) v SSHD [2004] EWCA Civ 1094 at 65. The authorities in relation to this aspect of the public interest suggest that deportation ‘goes well beyond depriving the offender in question from the chance to re-offend’ and is to be ascribed lesser weight than the facets of deterrence and ‘revulsion’: DS (India) v SSHD [2009] EWCA Civ 544 at 37.

Firstly, deportation can only ever really be said to prevent re-offending in the UK on the simple basis that, following deportation, the individual is obviously not present to commit crime in this country. Clearly, it does not prevent the individual re-offending in the country to which he or she is to be returned.

Secondly, and related to this, deportations of foreign national prisoners take place without any of the accompanying safeguards employed by the domestic Probation Service, part of whose role is to oversee the rehabilitation of individuals convicted of crimes in the UK as well as to attempt, as far as possible, to reduce their risk of re-offending. Further preventative measures are employed for individuals who have committed particular crimes, such as registration on the Sex Offenders Register for those convicted of crimes of a sexual nature.

Those convicted of sexual offences against children will usually be subject to an indefinite prohibition on working with or around young people and a requirement to notify the local authorities of their address. Parents in this country have the right to know if a person has previously committed sexual offences by application to the police under ‘Sarah’s Law’. To those that would argue that the Home Office’s duty is limited solely to these islands, the Sexual Offences Act 2003 provides for Foreign Travel Orders where a sex offender is prevented from travelling abroad in order to protect a child or children from serious sexual harm outside of the United Kingdom: s.114 Sexual Offences Act 2003. The duration and restrictions imposed by these Orders were recently increased: see the Explanatory Memorandum to the Magistrates’ Courts (Foreign Travel Orders) (Amendment) Rules 2010.

To refer to the risk of re-offending as one of the ‘public interest’ reasons for deporting ‘foreign criminals’ is arguably difficult to sustain in an increasingly globalised and interconnected world. This anachronistic ‘beggar thy neighbour’ approach assumes that the UK authorities have a duty to protect only those living in this country rather than a wider duty to the rehabilitation of criminals, foreign or otherwise, and to protect, as far as it is possible to do so, those living abroad (a principle which is, incidentally, being explored in European law deportation cases: see Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC)).

By deporting criminals who are still technically under license, without any requirement for them to engage in the rehabilitative schemes offered by the Probation Service; with no requirement for them to report or register (in the case of sex offenders); and with no restrictions on working in certain professions or with certain classes of people, this parochial interpretation of ‘public interest’ may in fact serve to increase the risk of re-offending for those individuals, potentially against British citizens (who have been known to holiday abroad), albeit far from these shores.

Luqmani Thompson & Partners regularly represent clients facing deportation decisions, in appeals against decisions to deport and in applications for the revocation of orders for Deportation.