Foreign Nationals in the Prison System

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					Prisoners Advice Service - Information Sheet

Foreign nationals in the prison system

Who is classed as a foreign national           unconvicted prisoners, you should be
prisoner? The term ‘foreign national           informed that you will be held with
prisoner’ is applied to anyone in prison in    convicted prisoners and a record of your
this country who is either remanded or         agreement should also be made.
convicted for criminal charges and does
not have an absolute legal right to live or    If you have not actually been
remain in the UK. If you have a British        recommended for deportation but are
passport or British citizenship you are not    detained due to your immigration status,
a foreign national, although if you were       any detention beyond your release date
not born in Britain, the Prison Service may    must be authorised by a caseworker from
still inquire into your status to ascertain    the IND Criminal Caseworker team or an
that you are indeed a citizen. People with     immigration Officer. Everyone held by
dual nationality are treated as British        IND should receive a monthly update on
nationals, although their details are still    the progress of their case and have a right
passed to the Immigration Nationality          to apply for bail.
Directorate (IND as in exceptional
circumstances they may be considered for       Detainees can be held either in prisons or
removal of their naturalisation.               in IND removal centres; however IND will
                                               not accept various groups of detainees,
Even if there was no mention of                including those convicted of was for
deportation in court when you were             serious violent, sexual or drug offences,
convicted or sentenced, once any foreign       those who pose a threat to children, and
national is sentenced to a criminal term of    those who are considered to have been a
more than very short duration, their case is   threat to security or control while in prison
referred to IND, which then considers          custody.
whether to deport the person. This applies
equally to citizens of EU countries. If you    Categorisation
have been granted exceptional or               All prisoners are categorised according to
indefinite leave to remain on asylum or        the risk they are considered to pose if they
family grounds, you should still not           should escape. In all the higher security
assume that you will automatically be          categories,      the     procedures       for
allowed to remain in this country if you       categorisation are exactly the same for
have been convicted of a criminal offence.     foreign nationals as for British citizens.
You should insure that you notify your         However this changes when it comes to
immigration solicitor of your situation and    Category D or open prison status. Until
seek their advice.                             2002 there was a blanket policy that no-
                                               one due to be deported was allowed to go
Immigration Act detainees                      to an open prison, however following a
If you are only held in prison under the       successful legal challenge, the position
Immigration Act you will have the same         changed and moves to open prisons for
status and privileges as an unconvicted        deportees became governed by Prison
prisoner. This applies both if you have        Service Instruction 35/2002, which
been neither convicted or nor remanded in      stipulates that prior to agreeing that you
custody for a criminal offence and if you      can be transferred to a Category D prison,
have completed a custodial sentence and        the prison you are in has to receive from
are awaiting deportation. There is no          the Immigration Service a form D029 – A
automatic right to be moved to a local         (the notice of intention to deport). The
prison. Where a prisoner is detained in a      prison then has to send another letter,
prison that does not usually hold              asking if there is any further information

UPDATED 13/6/06
that the immigration service has, prior to     parole.    All other deportees will be
agreeing to make you Category D.               presumed suitable for ERS, unless there
                                               are     exceptional     and     compelling
This still applies. However, in 2006 the       circumstances, or there is a consecutive
Prison Service issued a new version of         term for contempt or in default of payment
PSO 4630, which deals with Immigration         (fine or confiscation order) or outstanding
and Foreign Nationals in Prisons. In           criminal charges. The decision to approve
relation to categorisation, this states:       early removal must be taken by a governor
                                               and the Parole Clerk must notify the
‘The overriding purpose of security            deportee and IND.
classification is to ensure that prisoners     [Fuller guidance on ERS and Parole for
are retained in custody with a level of        prisoners liable for deportation is
security which is consistent with the need     contained in PSO 6000, chapter 9.]
to prevent escape and to protect the
public. Any increased likelihood of            Repatriation
deportation for foreign nationals given a      The Repatriation of Prisoners Act 1984
custodial sentence may increase the risk of    brought into effect the Convention on the
escape or absconding. This risk should be      Transfer of Sentenced Persons, which
taken into account when considering            enables foreign national prisoners to be
foreign national prisoners for Category D      transferred back to the country of which
and allocation to open conditions….Each        they are a national and serve their sentence
case must be individually considered on its    there. Sentenced prisoners from countries
merits but the need to protect the public      which are signatories to the Convention
and ensure the intention to deport is not      are eligible to apply for repatriation if they
frustrated is paramount. Category D will       have at least six months left to serve and
only be appropriate where it is clear that     are have no outstanding appeals.
the risk is very low.’
                                               If you want to apply for repatriation you
Early Removal Scheme (ERS)                     should make an application to the
The early removal scheme for foreign           governor of the prison where you are held.
national prisoners came into force in July     This can be done on a complaint form, and
2004. It is set out in PSI 27/2004. The        you should give details including your full
scheme allows all foreign nationals            name, date of birth, address in your home
serving determinate sentences of over 3        country, passport number and the place
months under the Criminal Justice Act          and date of issue. The request is
1991 or Standard Determinate Sentences         forwarded to Prison Service Headquarters,
under the Criminal Justice Act 2003 to be      which consults with the Secretary of State
considered for early removal, unless they      and the government of the country of
are statutorily exempt. The main               which you are a national to decide whether
exemptions      are    prisoners:  serving     repatriation is considered appropriate by
extended sentences; returned to custody;       all parties. The period of time that has
subject to hospital orders, hospital           been served here prior to repatriation is
direction or transfer direction under the      taken into account, and you take with you
Mental Health Act 1983; subject to the         any remission earned in this country. If the
notification requirement of the Sexual         sentence given in this country is longer
Offences Act 2003; or who, if granted          than a sentence that could be imposed for
ERS, would be removed less than 14 days        the same offence in their home country, it
earlier than otherwise.                        can be changed to the nearest equivalent
                                               sentence lawfully imposed in that country,
Those serving 4 years and over for a           although this may not be longer than the
violent or sexual offence will be subject to   original sentence.
a risk assessment prior to the granting or
otherwise of ERS. The Early Release and        PRISONERS’ ADVICE SERVICE
Recall Section conduct this risk               PO BOX 46199 LONDON EC1M 4XA
assessment using the same criteria as          TEL:020 7253 3323    0845 430 8923

UPDATED 13/6/06

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Description: Foreign Nationals in the Prison System