An increasing number of EU nationals who have committed crimes find themselves being deported. In the context of the UK’s tortured departure from the EU, the deportation of foreign criminals has become a touchstone of British notions of the public good, writes Nevena Nancheva (Kingston University London). She argues that the UK has effectively curtailed the rights of what it sees as a particularly despicable group of migrants – foreign criminals. Rather than looking at its own inequalities, it has chosen to tighten its physical and invisible borders. 

Britain used to deport its criminals. In fact, it used to deport all ‘wicked and evil-disposed persons’ whom the judges were too merciful to execute instantaneously for a long list of crimes against property, or indeed, for being idle or seeking employment, as section V of the Transportation Act of 1717 mandates. Such offenders were transported originally to the West Indies (where they habitually neglected to stay), then to America (a secret often brushed under the carpet by American historians and politicians alike), then, amidst the turmoil of American revolution and to prevent the French from extending their empire, to Australia in 1787.

In those days, the dispossessed, the idle, the vagrant, the lewd fell into the category of criminals because they threatened the established social order. They were bound for expulsion to protect sovereign landowners, the common good, and the good society. The mobile, in particular, were frowned upon as ‘the chrysalis for every species of criminal’. From a longue durée historical perspective, Bridget Anderson spends a lot of time unpacking the link between vagrancy and criminality in Britain, positioning the migrant as essentially a ‘failed citizen’.

Today, we begrudgingly agree that our criminals, petty or not, are our own problem and should not be dumped on indigenous peoples around the world. (That is, unless we can strip them of their citizenship and invite Bangladesh to deal with them!) Foreign criminals, however, are a totally different matter: a cause célèbre for a host of Labour and Tory leaders, the deportation of foreign criminals has gradually become the norm, rather than the exception to the rule.

Changing the rule book

The notion of Britain’s ‘public good’ has remained intrinsically linked to this development: under the 1971 Immigration Act, non-citizens are liable to deportation if this is deemed to be ‘conducive to the public good’ (section 3(5)). There is no explicit mention of criminality in this law, but the 2007 UK Borders Act amends the omission by explaining that ‘the deportation of a foreign criminal is conducive to the public good’ for the purposes of the above (section 32).

The amendment came after a string of scandals and heated public debates over the fate of some 1,023 foreigners who had been released from British prisons into society since 1999, rather than considered for deportation, costing the office of the then Home Secretary Charles Clarke. It is perhaps not coincidental that these discussions arose in the process of EU enlargement to the 10 former communist states of Central and Eastern Europe. Even though regions in turmoil (such as Somalia) or human rights (e.g. international refugee protection) were cited at the time as constraints on deporting foreign criminals, Charles Clarke went on to write a book about the threat of migration within the EU, capturing a long-standing concern of the British public with the open borders and the freedom of movement which the EU seemed to be all about.

The invisible boundaries of Britain

In the context of Brexit and UK’s tortured extraction from the EU, the deportation of foreign criminals has become an interesting touchstone of British notions of the public good: that elusive abstraction which pits the lives and rights of concrete men, women and children against a fuzzy and imagined, but clearly incomparably more significant, entity: the nation. In 2018, I conducted a pilot study of the impact of deportation on the families of foreign criminals in the designated foreign nationals male prison HMP Maidstone. What I discovered in my conversations with matter-of-fact prison wives, is that the law is implemented with implicit disregard for the integrity of their families and the welfare of their children. That the much-lauded ‘public good’, upheld in the letters from the Home Office and the decisions by the judges, should trump the best interests of these families points to the boundaries of Britain’s community of value. As the Brexit dynamics narrows these boundaries, the distinctions between those who clearly do not belong (such as foreign criminals) and those who should belong but are not really welcome (such as EU nationals) become blurred.

Image: author’s, Walls of HMP Maidstone, The Visits Building (1819).

No Article 8 rights for foreign criminals

Even the immigration-control-obsessed 2007 UK Borders Act provides an exception (section 33(2)(a)) to the deportation of foreign criminals in cases where the removal of an individual would breach his or her rights under the European Convention on Human Rights, in particular the right to family and private life under Article 8. Before a decision for deportation was made, the individual’s rights would be weighed against the public interest on the basis of a five-stage test (the case of R (Razgar) v SSHD [2004] UKHL 27), normally by a panel of judges at a tribunal, covering a wide variety of factors (‘as varied as life itself’, lawyer Nick Nason sympathetically explains). These rules were swiftly changed, first by the executive in 2012 and then by the legislature in 2014, to limit the cases when individual rights would disable deportation, and to give decisively greater weight to the public interest.

Thus, a prison sentence of anything more than 12 months could justify interference with the rights of a foreign citizen to maintain his or her spousal or parental relationships in the UK, which would otherwise have been protected under human rights legislation. The Secretary of State’s practice to ‘certify’ these rights as ‘clearly unfounded’ (aka ‘deport now, appeal later’) aimed at ‘cracking down on the appeals conveyor belt used by criminals to delay their removal from the UK’, as then Immigration Minister James Brokenshire claimed after the practice was upheld at the court of appeal in 2015.

Disturbing stories began to emerge of petty criminals being ‘treated like animals’, apprehended when signing on with the Home Office and rushed on chartered flights to Jamaica at the break of dawn. Even as the Supreme Court ultimately ruled the system for deportation before appeal unlawful, the Windrush scandal followed in 2018, to illustrate the extreme extents to which Britain’s fascination with deportations had legitimised the practice.

What of EU criminals?

Interestingly, since 2014 an increasing number of EU nationals find themselves among the deported foreign criminals. This is somewhat surprising since EU law mandates a much higher level of protection against deportation for EU citizens than the domestic rules for other foreign criminals. This number is in addition to the homeless EU nationals deported from the UK on the basis of Home Office’s creative interpretation of EU Treaty rights as incompatible with homelessness. The removal of homeless EU nationals has fed into Britain’s own soul-searching over the enforcement of the 1824 Vagrancy Act continuing to criminalise homelessness and begging!

In favour of closure…

So Britain seems to have gone full circle from the days of the penal colonies and the deported mobile poor. It has effectively curtailed the rights of a particularly despicable group of migrants – foreign criminals – all the while making clear its displeasure with order-disturbing vagrants. Rather than looking at its own inequalities, it has chosen to tighten its physical and invisible borders. Brexit will inevitably bring further legal restrictions in the governance of migration. One can only surmise their impact on the public good of Britain after the EU.

This post represents the views of the author and not those of the Brexit blog, nor LSE. 

Dr Nevena Nancheva teaches Politics, International Relations and Human Rights at Kingston University London. She has studied EU migration to the UK since 2016, with a British Academy grant, building an academic network of scholars working on the topic. Her current research focuses on transnational identities and the marginalisation of migrants in the context of Brexit. This piece is based on a pilot study of EU nationals in detention with a view to family reunification and human rights protection.