Limiting the Time Limit for Immigration Detention: The Danger of the ‘Foreign National Offender’ Exemption

This article was written by Mishka from the Freed Voices group – Freed Voices is a group of experts-by-experience dedicated to speaking about the realities of detention and calling for radical detention reform. Mishka writes under a pseudonym and tweets at @Mishka_anonym . Freed Voices tweet at @FreedVoices

On 27 January, I read a news article published in The Guardian relating to immigration detention in the UK:

MPs join forces in drive to end indefinite immigration detention.

Harriet Harman MP, the chair of the Joint Committee on Human Rights (JCHR), has proposed a 28 day time limit on immigration detention, and has gathered the support of a group of MPs including Andrew Mitchell, David Davis and Dominic Grieve. Good cross-party support on this issue is certainly welcome, and credit goes to all MPs involved.

A dangerous precedent

 However, this proposed 28-day time limit excludes a particular group of people in detention: those with previous convictions. This would set a dangerous precedent and is a pitfall we have to avoid.

During its inquiry into immigration detention, the JCHR received numerous written evidence submissions and heard oral evidence by various experts: charity/NGO representatives, lawyers and experts with first -hand experience of immigration detention in the UK. The evidence consistently made clear that a time limit on detention must be applicable to everyone.

The category of people in immigration detention that many politicians find it difficult to talk about is people with previous convictions.

I am not going to judge people depending on the offence they have committed; it’s up to the criminal justice system to decide that, following due process, and after considering the individual circumstances of each case. However, there are occasions where the system puts people in situations where they are forced into do certain illegal activaties:

 Often, foreign national offenders have a criminal record because the system is designed to criminalise them. For example, applicants for Article 8 rights can wait years before the Home Office makes a decision – but they are not allowed to work yet must somehow find the money to travel to report to the Home Office every week. They inevitably end up using false documents to seek employment to support ourselves and stay alive. If caught using a fake or someone else’s UK passport, the case is automatically transferred to the crown court and the individual is guaranteed to find him/herself serving more than 12 months. – Michael, Freed Voices


 Under the UK Borders Act 2007, a non-British citizen who has committed a crime for which their sentence is over twelve months is  subjected to ‘automatic deportation’. Due to the ‘automatic’ nature of this process, individual cases do not receive much scrutiny. It’s a blunt instrument.

‘Foreign national offenders’, then, are detained as part of the deportation process. This is not considered a part of their criminal sentence; it’s considered, rather, part of the process of deportation. In practice, however, this time in detention amounts to a second punishment.

It’s also important to highlight the fact that deportation is often grossly disproportionate. These often are often people who have lived in the UK for decades, who have built their lives in this country; people who have families, children, and friends, being sent back to countries they left decades ago.

The disproportionate nature of deportation was something that the senior civil servant Stephen Shaw also emphasised in his ‘follow up’ review:

I found during my visits across the immigration detention estate that a significant proportion of those deemed FNOs had grown up in the UK, some having been born here but the majority having arrived in very early childhood. These detainees often had strong UK accents, had been to UK schools, and all of their close family and friends were based in the UK.

It should also be noted that a 12-month sentence is often the result of an accumulation of minor offences. But, even where the offence is major, automatic deportation is inherently discriminatory. If you are a citizen of the UK and you commit a crime, then you are sentenced and after this sentence you would be released back into the community – perhaps with certain probation conditions. You are considered to have done your time. If you are not a UK citizen, however, the punishment goes on, you are locked up for the second time in immigration detention centres, this time indefinitely.

A false dichotomy

 When looking at vulnerability to harm in detention, there is no evidence to suggest that someone who has a criminal record is less likely to be harmed by indefinite detention. As Romany Kisbee-batho has written elsewhere on No Walls, everyone in detention suffers mental and physical trauma.

Too often, I see people say, “Do not detain innocent asylum seekers”; “innocent asylum seekers are held indefinitely across UK immigration detention centres”. Yes, this is factually true – though I do not like when people try to force that label ‘innocent’ on people. But I then ask: ‘what about others held indefinitely in immigration detention who are not asylum seekers?’ This deserving vs non-deserving approach is, in my view, a dangerous precedent. Who next will be classed as undeserving?

Indefinite detention is a human rights and civil liberties issue; not an asylum-seekers’ issue.

Therefore, if a time limit is implemented, but excludes people with previous convictions, then that time limit is fundamentally unfair. It would only benefit one cohort of the people detained indefinitely across UK immigration detention centres.

The need for solidarity

I am glad to see that many NGOs, charities, and human rights organisations are arguing that a time limit on immigration detention must cover everyone. I hope that this group of cross-party MPs will listen to them. I am also glad to see that immigration detention has become a widely discussed topic.

I wholeheartedly support a time limit on immigration detention for everyone; however not just for one category of people in detention. There can be no exemptions.  

But a time limit for everyone is not the end; it is an urgently needed step that has the potential to reduce the use of immigration detention both in length and scale. The end goal is a great reduction of the use of detention, with more alternatives to detention until we don’t need immigration detention at all. 

Image by Markus Tacker on Flikr-Commons