Introduction
At half past noon on 26 April 2006, a chorus of MPs shouted “Resign“! Labour’s Home Secretary, Charles Clarke, was due to make a statement to the House of Commons. The papers were awash with condemnation of the Blair Government’s wilful neglect of public security. Prompted by the House of Commons Public Accounts Committee, Clarke confessed that 1,023 foreign criminals had been released early and not considered for deportation, contrary to government policy. Facing the Commons, he expressed deep regret and pledged to immediately set it right. But the effects of the foreign prisoners scandal would be felt for years. It shaped the UK’s debate on deportation, and in the following years, Labour and Conservative governments competed to introduce stricter laws on deportation. With issues of deportation rearing their heads once more, it’s a good time to consider the topic.
Some history
The practice of deportation is ancient, but legal protections against it are relatively new. The very word is derived from the Roman practice of expelling citizens to outer edges of empire (“deportatio”). In England, banishment was a mechanism for dealing with criminals when there were mitigating factors, or for those who were unwanted for political reasons. In 1584, the Act against Jesuits banished all Roman Catholic Priests and followers from England on pain of high treason, unless they swore allegiance to Queen Elizabeth I. The Vagabonds Act 1597 allowed justices to banish “dangerous rogues” out of the Realm. Between 1788 and 1868, Britain and Ireland banished some 160,000 convicts to penal colonies in Australia.
Nevertheless, in the following years, banishment came to be condemned by liberal theorists, who considered it to be an excessively arbitrary punishment, with little deterrent effect. Prisons were seen as a more effective means of punishing perpetrators and deterring them from criminality. By the twentieth century, the responsibility of states against deportation was reinforced by rules of international society. During the postwar era, the Universal Declaration of Human Rights protected individual freedom to leave and return to one’s country of nationality.
Who may be deported?
Moving to the present state of the law, there are two main provisions on executive deportation orders. The first is a discretionary power, which means that it is exercised pursuant to the Home Secretary’s own judgment. Section 3(5) of the Immigration Act 1971 (IA) confers upon the Home Secretary broad discretion to deport any foreigner and their immediate family members on the grounds that it is “conducive to the public good”. Home Office guidance gives us some clarity as to how this power is usually exercised. Deportation orders can be made for national security reasons, against foreigners who are persistent offenders, against those who engage in sham marriages or who commit serious drug related offences. Some of the reasons justifying deportation orders are interpreted more broadly than others. In Rehman, the House of Lords held that the Home Secretary does not need to prove that a foreigner is an immediate and direct threat in order to make a deportation order on national security grounds. “National security reasons” is not, then, to be construed narrowly and could include promoting or engaging in violent or terrorist activities in a state that is friendly to the UK.
The second legal provision makes deportation of a large group of foreign criminals mandatory; there is no element of choice. In the wake of the foreign prisoners crisis which was mentioned earlier, the Blair Government introduced the UK Borders Act 2007 (UKBA). Section 32(5) of this act put the Home Secretary under a duty to deport all foreign criminals who have been convicted and sentenced to a period of imprisonment of over twelve months. This provision made the deportation of many foreign criminals mandatory; the Home Secretary now has a legal obligation to deport these foreign criminals.
However, some foreigners are exempt from being automatically deported. They include certain EU nationals and their families, certain diplomats, Irish citizens, and anyone whose deportation would breach the UK’s duties under international law, including the UN Convention on Refugees and the European Convention on Human Rights (ECHR).
Who can appeal deportation?
Technically speaking, there is no right to appeal deportation orders as such. However, a right of appeal exists against three connected decisions. These are the Home Secretary’s refusal to grant a deportee a protection claim under the Refugee Convention, a decision to revoke a deportee’s protected status, and a decision to refuse a human rights claim. Foreign criminals will not typically be able to rely on the Refugee Convention because article 33(2) strips them of their protections if they have been convicted of a “particularly serious crime”, or if they constitute a “danger to the community of that country.” Most appeals are made based on the ECHR, and especially article 8, which protects the right to privacy and a family life. This article is often relied upon because many deportees have laid down roots in the UK and may have a British spouse or child. However, article 8 is a “qualified right”, which means it does not grant absolute protection. This means that the Home Secretary can legitimately interfere with it if “the objective of the measure is sufficiently important to justify the limitation of a protected right.” Domestic law requires judges to adopt a careful and somewhat restrictive approach when considering appeals on article 8 grounds. Amongst other factors, judges must consider whether the deportee has been lawfully living in the UK for most of their life and whether deporting the foreign criminal would be “unduly harsh” on their partner or child who are settled in the UK.
However, few legal challenges succeed. Between 2008 and 2022, 11% appeals on human rights grounds in the UK succeeded. The prospect of successfully appealing a decision in the Strasbourg courts is even slimmer. The European Court of Human Rights has affirmed the fact that every country is entitled to control its own borders, and to deport foreign criminals. Between 1980 and 2024, the UK was involved in 29 Strasbourg cases that were about either deportation or extradition, and in the majority, the Strasbourg courts found that a planned deportation would not violate ECHR rights. These figures do not prove that human rights legislation is a significant obstacle to deporting foreign criminals.
What are the Starmer Government plans on deportation?
Turning finally to recent developments, the Starmer administration has announced two measures that are meant to make it easier to deport foreign criminals. The first consists of expanding the “Early Removal Scheme“, which allows foreign prisoners to be deported before they reach their earliest release date. This policy was introduced by section 260 of the Criminal Justice 2003. The Justice Secretary determines through delegated legislation the amount of time that prisoners need to serve before being deported. In June, Justice Secretary Shabana Mahmood announced prisoners who have served 30%, instead of 50% their sentences would be deported. An order implementing this has already been laid before Parliament, and it is due to come in force on 23 September. The added benefit of this policy change is that it could help alleviate overcrowding in prisons by freeing up more space. The second change that the Government has announced is an extension of non-suspensive appeals, which is known as the “Deport Now, Appeal Later” policy. Eleven years ago, deportees could not be removed to their country of origin until the legal process was over. However, the Conservative-Liberal Democrat Coalition introduced section 17 of the Immigration Act 2014 which allowed those pursuing a human rights appeal to be deported to their country of origin before pursuing an appeal, so that the process is conducted remotely. The list of countries where this is possible is outlined in guidance. In August, the Home Secretary Yvette Cooper announced that the list of countries would “treble” to 23 countries. While this change seems relatively minor, some of the countries included correlate to the leading nationalities of foreign criminals.
Conclusion
Few policies have been as popular as the deportation of foreign criminals. In 2007, a Labour Government made it mandatory for all foreign criminals to be deported if they are convicted and sentenced to a period of over 12 months in prison. In 2014, the Conservative-Liberal Democrat Coalition dispensed with the statutory right to appeal deportation decisions. They enabled foreign criminals to be deported before being able to appeal. In 2025, a Labour Government has continued and expanded the “Deport Now, Appeal Later policy” by adding a wider range of countries to those eligible for remote hearings. The Government has also sought to expedite deportations by enabling the early removal of foreign criminals who are serving their sentences in prison, in line with legislation introduced by another Labour Government nearly twenty years ago. Clearly, most politicians of different colours have been of one mind on deportation, and the law is actually less obtrusive than some newspapers might lead us to believe.
Tasneem Ghazi.
Tasneem is a PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.