The Jamaica deportations show what happens when simple humanity is eliminated from decision-making

Last night a deportation flight took off for Jamaica, despite the protests of MPs and a last-minute injunction that saw some removed from the plane. Many of the Jamaican citizens involved grew up in the UK—such as Reshawn Davis, who has been here since the age of 11 and has a baby daughter in this country.

Campaigners are outraged that this mass exile to the Caribbean has taken place before publication of an official report into the Windrush scandal. A leaked draft of the Windrush “lessons learned” review calls on ministers to “consider ending all deportation of foreign national offenders where they arrived in the UK as children.”

The Windrush factor has focused public attention on what is, to immigration lawyers like me, a common phenomenon. The law on deportation for criminal offending regularly sees people who have lived in the UK all their lives—who may even have been born here—exiled to countries they do not know. And as more and more home-grown offenders lacking UK citizenship are packed off to the countries of their ancestry, social problems have become a great British export.

The good news is that reform is not rocket science. We need only turn the clock back a few years. The law wasn’t always like this.

“Deportation” means the exclusion of a foreign national from the United Kingdom. Not only is the person physically removed but he or she is also banned from returning. It is a legal power that is usually used against foreign criminals, and is distinct from mere “removal,” where a person who does not have permission to stay in the UK is physically removed but can sometimes apply to come back again.

Deportation law was until 2006 fairly flexible. It gave huge discretion to the home secretary and it was generally serious criminals with weak connections to the UK who were deported. That changed for short-term political reasons.

On 25th April 2006, then home secretary Charles Clarke publicly admitted that the Home Office had failed to consider the deportation of over 1,000 foreign criminals who were coming to the end of their sentences; that some had re-offended after their release; and that the Home Office had lost track of most of those released. Even very serious criminals who had committed awful crimes and served long sentences were being released into the community without any consideration of whether they could or should be deported. Clarke was, after some initial prevarication, sacked on 5th May 2006.

The scandal that cost Clarke his job was caused by administrative failings at the Home Office. It wasn’t deportation law that was at fault.

But to shift the blame, Tony Blair pledged to change the law even though the law was not the problem. The UK Borders Act 2007 introduced “automatic” deportation for any foreign national criminal sentenced to more than 12 months. The main exception was if human rights would be breached.

Judges allowed some appeals on human rights grounds where the criminal had close connections to the UK. Theresa May didn’t like this, invented stories about cats being enough to prevent someone’s deportation, and changed the rules in 2012 to introduce very narrow exceptions.

For good measure she then put these narrow exceptions into the Immigration Act 2014. The result is a three-level categorisation of serious offending, medium offending and lower-level offending, with different exceptions at each level.

The framework, though complicated, is arguably sensible in theory. But the way the exceptions are interpreted by the Home Office and courts makes them all but impossible to satisfy.

For instance, one exception to deportation for medium-level offenders applies if the person has been lawfully resident most of his or her life, AND is socially and culturally integrated into the UK, AND there are significant obstacles to the person integrating into the country of return. In practice almost no person facing deportation can meet the cumulative combination of these tests.

“Most of life” is a mathematical calculation and many fail it. Any person who has committed a crime is argued by the Home Office not to be integrated into the UK, whether or not he or she has been brought up here. Any person who is fit and well and has even a hint of an ability to speak the relevant language is argued by the Home Office to be able to adapt and therefore integrate in the receiving country.

So, the present position is that automatic deportation applies even to those who were born in the UK or brought here as small children if they receive any sentence in excess of 12 months, with very limited exceptions that will often not apply in practice. Many members of the public and politicians across the political spectrum will agree that this is unfair, even if key advisers claim that this is an obsession of only the “Westminster bubble.”

The problem with narrowly-defined exceptions is that life is full of variety. The system eliminates common sense and simple humanity from decision making. It ties the hands of judges considering the most appropriate sentencing for offenders with long-standing ties to the United Kingdom. That leads to absurdly harsh results and the exile of mainly black and minority ethnic people who are functionally British.

Deportation law can be and must be changed again. It is time to scrap automatic deportation and bring back some compassion into the decision-making process.