EU doesn’t prevent us deporting foreign prisoners

by Jack Schickler | 03.06.2016

“Progress is too slow” in removing the 13,000 foreign prisoners and ex-offenders in Britain, Parliament’s Home Affairs Select Committee says today. It points the finger in particular at EU countries: after Britons, the top three nationalities in UK jails are Polish, Irish and Romanian. “The public is entitled to expect a more efficient process for prisoner transfers and removals” between EU countries, without which the public might “question the Government’s case for the UK remaining in the EU”, the committee says.

The MPs are right that this situation needs to change, especially given the government’s stated goal that foreign offenders should be removed as quickly as possible to save costs and protect the public. But Brexit is not going to help – indeed, it is far more likely to make matters worse.

After their sentences, EU nationals can be expelled on the grounds of public security or public policy. They can be refused re-entry on the same basis, although the exact conditions depend on how long they lived in the UK. As Professor of EU law Catherine Barnard has pointed out, David Cameron’s EU renegotiation slightly strengthens our hand here, as it allows us to keep out or deport those whose behaviour is merely “likely” to represent a genuine and serious threat.

A 2008 EU law also makes it easier to deport people during their sentences, obliging other states in the bloc to take back any of their nationals held in UK prisons. There are still a number of hurdles and teething problems. Poland was granted an extra five years to put the rules into effect, a period which ended only last December, while Ireland and Bulgaria have not yet even passed the national laws needed to implement the rules.  

Even for the remaining European countries, we rely on good administration and judicial processes on both sides – and our own track record is less than perfect. Ten years ago, Home Secretary Charles Clarke was sacked after a bungle by his ministry led to the release of foreign offenders eligible for deportation. More recent Parliamentary reports suggest the problems are not yet fully resolved. For example, police still fail to conduct immigration checks after arrest.

These issues certainly all seem soluble and, crucially, none of them are due to our EU membership. If anything, Brexit is likely to make the problems worse.

The Home Office told InFacts that 5,692 foreign national offenders were removed from the UK in 2015/ 2016; around 60% of them were returned to EU countries or the European Economic Area. It expects the pace of removals to quicken significantly by the end of the year once new processes have bedded down.

If we left the EU, the 2008 rules on prisoner transfer would lapse. We might have to rely on bilateral agreements, as we currently do with non-EU countries. These can be tricky. Progress in agreeing a prisoner swap deal with Jamaica, whose UK prison population ranks right after Romania’s, has been sticky and reliant on the UK sending significant sums of cash to help pay for the island’s jails.  

Edited by Alan Wheatley