A Short Guide to Early Removal Scheme and the Facilitated Return Scheme
The latest quarterly figures from the UKVI paint a striking picture of the government’s enhanced enforcement strategy, with Q3 2024 witnessing an unprecedented surge in deportations and removals.
Home Office’s stricter pledged to take a firmer stance on immigration enforcement is reflected through the intensification of removal operations.
According to the latest data from Q3 2024, the UK government has reported progress in removing foreign national offenders (FNOs) from the country. In the 12-month period ending September 2023, 3,577 FNOs were removed from the UK, representing a 19% increase in overall FNO returns compared to the previous period.
The Early Removal Scheme (ERS) has been expanded, allowing for earlier release of eligible FNOs. As of January 16, 2024, FNOs can now be released up to 18 months before their earliest release point, an increase from the previous 12-month limit. This change was implemented as part of measures to reduce pressure on prison capacity.
The government considers the ERS its best-performing removal scheme, with 5,262 FNOs removed under the scheme between January 2019 and June 2022.
Key differences between the Early Removal Scheme and the Facilitated Return Scheme.
The Early Removal Scheme (ERS) and the Facilitated Return Scheme (FRS) are two distinct programs aimed at removing foreign national prisoners (FNPs) from the UK, but they have several key differences:
Purpose and Eligibility
ERS: Allows for early removal of all determinate sentenced FNPs who are liable to removal, up to 545 days before their earliest release point.
FRS: Encourages the early departure of FNOs from the UK by providing financial support for reintegration.
Administration
ERS: Administered by the National Offender Management Service and applies automatically to eligible prisoners.
FRS: Administered by the Home Office and requires FNOs to cooperate with their early removal.
Timing of Removal
ERS: Can be applied during the custodial period, including after recall from license.
FRS: Aims for removal at the earliest possible opportunity, which may be before or after the completion of the sentence.
Financial Aspect
ERS: Does not provide direct financial incentives to prisoners.
FRS: Offers financial support to FNOs for reintegration in their home country.
Scope
ERS: Applies to determinate sentence prisoners only, excluding those serving indeterminate or life sentences.
FRS: Available to a broader range of FNOs, with the level of support depending on whether they have been given a custodial sentence.
Voluntary Nature
ERS: Considered for all eligible FNPs, not necessarily voluntary.
FRS: Voluntary scheme that FNOs can choose to participate in.
Eligibility criteria for the Early Removal Scheme.
1.The scheme applies to all determinate sentenced foreign national prisoners (FNPs) who are liable to removal from the UK.
2.Prisoners must serve a minimum requisite period before being eligible for early removal:
-For sentences less than 2180 days (approximately 6 years), prisoners must serve at least one-quarter of their sentence.
-For sentences of 2180 days or more, prisoners can be removed up to 545 days before their earliest release point.
3.ERS is mandatory for eligible prisoners, and they cannot opt out of consideration.
4.The scheme applies to adult offenders as well as young adults (typically 18-20 years old) and young people (typically 15-17 years old) sentenced to detention in a young offender institution or under specific sections of the Sentencing Act 2020.
5.Prisoners serving indeterminate sentences, such as life sentences or Imprisonment for Public Protection (IPP) sentences, are not eligible for ERS.
6.ERS does not apply to periods of imprisonment imposed for non-payment of fines, confiscation orders, or civil forfeitures.
7.Prisoners must not have outstanding criminal charges or confiscation orders.
8.The Home Office Immigration Enforcement must be able to facilitate the prisoner’s removal during the ERS eligibility period.
It’s important to note that while a prisoner may meet the eligibility criteria, a governor may still refuse to authorize early removal under ERS if there are valid reasons, such as evidence of planned further crime, violent behaviour in prison, or serious concerns for public safety.
Current Failures of Early Removal Scheme (ERS) and the Facilitated Return Scheme (FRS).
According to the House of Commons Library briefing and the inspection report by the Chief Inspector of Borders and Immigration, several failings were detected in the Early Removal Scheme (ERS) and the Facilitated Return Scheme (FRS):
1.Ineffective administration: Both the ERS and FRS were found to be not administered effectively.
2.Underperformance of ERS: The Early Removal Scheme was reported to be underperforming, with managers and staff in the Foreign National Offender Returns Command (FNORC) expressing frustration at their inability to fully maximize the scheme.
3.Casework delays: Cases were not being progressed to enable removal as early as possible due to “constantly shifting priorities”. These delays add significant costs to detaining FNOs when there are pressures on the prison estate.
4.Data issues: There were significant concerns around the availability and reliability of ERS data. FNORC has been unable to report ERS volumes in its monthly performance pack since September 2022.
5.Lack of clear priorities: The inspection identified a lack of clear priorities and “a disproportionate focus on managing cases, rather than making decisions and progressing the removal of FNOs”.
6.FRS improvement attributed to policy change: The significant increase in removals under the Facilitated Return Scheme in 2022 was attributed to a change in policy (allowing applications from EEA nationals) and high uptake among Albanian nationals, rather than improvements to the scheme’s effectiveness and efficiency.
7.Inadequate data management: The Home Office was found to lack a firm grip on its caseworking operations, with shortcomings in data and management information. The department was unable to provide consistent data sets or complete evidence returns for the inspection.
Legal Remedies Available For A Prisoner Refused Early Removal Scheme.
There are legal remedies available for prisoners who are refused early removal under the Early Removal Scheme (ERS). These include:
1.Prison Service Complaints Procedure: Prisoners can use the standard complaints procedure to challenge the decision to refuse their release under ERS.
2.Habeas Corpus: In cases where a prisoner believes they are being unlawfully detained, they can apply for a writ of habeas corpus. This is a legal principle that allows for challenging unlawful detention. Key points about habeas corpus applications include:
-They can be made to the High Court at any time, with a judge always on duty.
-Legal aid funding is available under both civil and criminal legal aid contracts.
-The process is governed by Part 87 of the Civil Procedure Rules and Practice Direction RSC 54.
-It’s crucial for criminal practitioners to be familiar with this remedy, especially given potential confusion around new release provisions.
3.Legal Representation: Prisoners can seek assistance from solicitors to challenge decisions. For example, in a recent case of Kim v HMP Wandsworth, the Claimant’s representatives successfully obtained a writ of habeas corpus for a young adult who was unlawfully detained.
It’s important to note that while these remedies exist, they are typically used in cases where there’s a strong belief that the detention or refusal of early removal is unlawful or unjustified.
The success of any legal challenge would depend on the specific circumstances of each case and the reasons for the refusal of early removal under ERS.
However, a recent inspection report found that the ERS and the Facilitated Return Scheme were not being administered effectively due to shifting priorities and case management issues
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Useful links
In brief: Deportation and early removal of foreign national offenders
Deportation, removal, and voluntary departure from the UK
Transparency Data: Immigration Enforcement Data: Q3 2024
FOI release – Early Removal Scheme (ERS) and the Facilitated Returns Scheme (FRS)
The Early Removal Scheme and Release of Foreign National Prisoners
The Facilitated Return Scheme (FRS)
New release provisions for prisoners and what they mean in practice, Law Gazette
Criminal Justice And Immigration Bill
Terrorist Offenders (Restriction of Early Release) Bill
Written By Shareen Khan, Legal Content Writer
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