Totally ignored: foreign national offenders and the introduction of a Payment by Results system for rehabilitation work
At the end of February BID submitted its response to the Ministry of Justice consultation ‘Transforming Rehabilitation: a revolution in the way we manage offenders’. It's available for download at the end of the page.
BID’s client group includes foreign national ex-offenders facing deportation action who are held in removal centres, and a smaller number of time-served foreign national prisoners who for various reasons remain in prison subject to immigration act powers at the end of their sentence. Foreign national offenders exhibit extreme diversity in terms of country of origin, immigration status, length of stay in the UK, reason for entering and remaining in the UK, nature and strength of family and community ties in the UK, and caring responsibilities. This is in addition to the range of offences for which they have been charged or convicted that have resulted in their custodial sentence. Many foreign national prisoners have been UK taxpayers; many have UK citizen partners, children, and naturalised UK citizen siblings or parents.
A recent survey by BID and ICAR (2013) across the UK immigration detention estate found that 62% of our clients surveyed were subject to deportation action as a result of their criminal sentence, and had been transferred to a removal centre straight from prison. Only 26% of detainees who had been in prison had received any independent immigration advice while in prison, including advice on their deportation. Our foreign national clients’ contact with probation services and offender managers comes as a result of time spent in prison serving a sentence, and subsequent release from immigration removal centres on immigration bail while they are still under Licence. Where a foreign national held in administrative detention is still under Licence, they must seek approval of the proposed immigration bail address from the receiving Probation Trust before they can make an application for release. CLINKS have now released a set of answers from Justice Minister Chris Grayling to questions put to him at the Clinks AGM in February 2013. Detention Advice Service (DAS), an organisation providing immigration advice, information and support to those detained, or threatened with detention, under immigration powers asked: "How will Chris Grayling ensure the inclusion of non-UK national prisoners - whether residing in the UK or abroad - in the Rehabilitation Revolution?"
The Minister has now responded, saying "Foreign National Offenders (FNOs) are a diverse group from over 150 nationalities. It is the Government's policy to seek to remove FNOs at the earliest opportunity. however, durign the course of their sentence FNOs have access to a range of activities to support their eventual release into society".
BID’s concerns focus on the likely exclusion of foreign nationals from rehabilitative work under PbR as a deliberate result of commissioning and contractual planning, despite the fact that foreign nationals form around 15% of the prison population at any one time. It is clear from the Ministry of Justice proposal document that women and other groups (young people, people with disabilities, and Black and Minority Ethnic Groups) are not likely to be well served by PbR providers from the point of introduction of PbR rehabiltiative services. There appears to be an expectation that learning will need to take place along the way once PbR delivery has begun, not before. It now seems clear from the Minister's answer to CLINKS that the exclusion of foreign nationals from planning for PbR in rehabilitation was not accidental.
Foreign nationals are not even mentioned in the proposal document, nor are they mentioned in the ‘NOMS Commissioning Intentions for 2013-14 Negotiation Document’, of which the October 2012 version is the most recent. BID therefore urges the Ministry of Justice to consider the needs of foreign nationals in the future provison of rehabilitative services at the earliest opportunity. The Minister’s resonse to CLINKS member Detention Advice Service is not encouraging.
Foreign nationals are not – for the avoidance of doubt – a subset of BAME offenders. It is the immigration status of foreign national offenders, not their ethnicity or culture, that sets them apart, and leads them along different trajectories in the criminal justice system to BAME UK citizens, who are not subject to periods in immigration detention while on Licence.
In BID’s experience of legal casework with this group, foreign national offenders held in immigration detention are already disadvantaged by their low priority among probation trust staff. Offender managers are often of the view that a foreign national offender will be removed or deported from the UK, when this is not necessarily the case. Licence-related address checks for immigration detainees seeking release on immigration bail are currently taking up to 8 weeks to complete, a situation that delays exercise of the right to apply for release from administrative detention and may be creating grounds for unlawful imprisonment. Just as importantly for the Ministry of Justice, around 40% of deportation orders are successfully appealed, and even those foreign national offenders who are eventually removed from the UK may spend signficant periods in the community during their Licence period if they are released from immigration detention on on immigration bail pending the securing of travel documents. This group of offenders cannot simply be ignored.
