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Time to Think Again About Foreign National Prisoners

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Although you'd be hard pushed to remember a good one, it's been a particularly bad week for foreign national prisoners. A few days ago, in an interview with the Sunday Telegraph, Theresa May once again pledged her commitment to preventing the 'abuse' of Article 8 of the European Convention on Human Rights by foreign nationals convicted of a criminal offence, promising that by the summer, the Immigration Rules will be changed so that the right to a family life will act as a barrier to deportation only in "exceptional cases".

Then, on Wednesday, the Home Affairs Committee published a report on the work of the UK Border Agency, which interrogates UKBA's failure to deport certain foreign nationals given custodial sentences, before setting out "our basic view that no foreign national prisoner should be released without deportation being fully considered."

Going on these alone, you'd be forgiven for thinking that currently, foreign national prisoners are given a fairly easy ride by an over-liberal, under-efficient system, and that urgent changes are needed to stem the tide of those managing to frustrate attempts to expel them from the UK.

In fact, the system is already pretty well stacked against them. Rather than the wily manipulators the Home Secretary seems intent on casting them as, foreign national prisoners are a vulnerable, disenfranchised group, who often struggle to fully understand the complex criminal justice and immigration systems they are faced with, and for whom there is little support available to help them navigate these.

The dominant tone of the political debate and much media reporting means that, when it comes to foreign nationals who commit crime, we're only too familiar with the trope of the 'dangerous' individual who enters the UK, often illegally, and commits a serious offence - and who must, therefore, be removed from the country in order to preserve the safety of the public. It's important to point out, therefore, that a broad range of offences, and not simply serious violent or sexual offences, can trigger deportation action. Under the provisions of the UK Borders Act 2007, for instance, any non-EEA national sentenced to twelve months or more in custody faces automatic deportation. It's also worth highlighting that anyone who is not a British citizen - including those who are living here entirely legally, and who have been settled in the UK for many years - can be deported.

If a non-UK citizen who is sent to prison does find him or herself facing deportation, what are the difficulties they are likely to face? There is, firstly, the challenge of getting hold of immigration advice when you're in prison. Although prison service guidance sets out that "it is important that ... independent immigration advice [is] available for prisoners to access when it is required", as inspectorate reports often testify, this is rarely readily available. The charity I work for, the Detention Advice Service (DAS), is the main provider of immigration advice in prisons, and we currently work directly in 14 of the more than 130 prisons in England and Wales, which gives an indication of the scale of the problem.

The lack of co-ordinated advice provision, in spite of the significant number likely to be affected by deportation - a recent parliamentary written answer has highlighted that at the beginning of this year, more than 5,000 foreign national prisoners were being considered for deportation - means that many are passing through the prison system without getting any advice about their situation at all. According to the most recent instalment of a regular survey conducted by Bail for Immigration Detainees (BID) and the Information Centre about Asylum and Refugees (ICAR), 42% of immigration detainees who have been foreign national prisoners received no immigration legal advice while they were in prison; the previous survey showed that this was the case for a staggering 78% of former foreign national prisoners interviewed.

Even if a foreign national does manage to get some immigration advice whilst in prison, there is no guarantee that they will be able to find a legal representative to help them to challenge deportation proceedings. At present, it's often difficult for those held in prisons located outside major cities to find legal aid solicitors to take on their cases. From April next year, when the legal aid cuts come into force, it'll be, in short, impossible for foreign nationals held anywhere in England and Wales to access legal representation to challenge deportation action unless they can pay for it. Needless to say, the majority cannot.

This leaves those facing deportation with the 'option' of representing themselves at an appeal hearing. Given, however, the complexity of immigration law - as recognised by the House of Lords during its Report Stage debate of the Legal Aid, Sentencing and Punishment of Offenders Bill - and the very real barrier of language faced by many foreign national prisoners, not to mention the difficulty of preparing a legal challenge whilst you're in prison, the government's insistence in its 2010 green paper on legal aid that those facing deportation should be able to "navigat[e] their way through the tribunal system" without professional assistance is almost painfully disingenuous.

Theresa May is right to have highlighted the need to reform the way foreign national prisoners are dealt with. If she is truly determined to root out unfairness in the current system, however, her concerns should lie with increasing the opportunities available to this group to understand and exercise their rights, and not with limiting their ability to access justice still further.