
Table of contents
- 1. Size of the foreign national prison population and number of returns skip to link
- 2. Legislation giving power to remove foreign national offenders skip to link
- 3. Process for deporting foreign national offenders skip to link
- 4. Early removal measures to deport foreign national offenders skip to link
- 5. Scrutiny of the early removal measures to deport foreign national offenders skip to link
- 6. Read more skip to link
On 25 April 2024, the House of Lords is scheduled to consider the following question for short debate:
Lord Jackson of Peterborough (Conservative) to ask His Majesty’s Government what steps they are taking to reduce the proportion of foreign national offenders incarcerated across the prison estate.
This briefing focuses on the UK government’s powers to deport foreign national offenders (FNOs) and discusses several schemes which can be used to deport FNOs early, before the end of their prison sentence.
1. Size of the foreign national prison population and number of returns
1.1 Foreign national prison population
The Ministry of Justice publishes snapshots of the prison population in England and Wales, which include a breakdown by nationality. As at 31 December 2023, there were 10,423 foreign nationals in prison.[1] This was 12% of the total prison population of 87,489. The most common nationalities after British nationals in prisons were Albanian (13% of the FNO prison population), Polish (9%), Romanian (7%), Irish (6%) and Jamaican (4%). Table 1 below presents a longer-term view of the foreign national prison population, covering the last five years:
Table 1. Top 10 nationalities of foreign national offenders held in prisons in England and Wales between 2019 and 2023
Nationality | Number of FNOs (as measured at 30 June each year) | ||||
---|---|---|---|---|---|
2019 | 2020 | 2021 | 2022 | 2023 | |
Albanian | 876 | 1,144 | 1,528 | 1,336 | 1,475 |
Polish | 754 | 903 | 868 | 830 | 856 |
Romanian | 734 | 731 | 732 | 752 | 758 |
Irish | 707 | 670 | 617 | 632 | 624 |
Lithuanian | 415 | 467 | 401 | 414 | 402 |
Jamaican | 460 | 411 | 403 | 395 | 403 |
Pakistani | 295 | 260 | 271 | 277 | 306 |
Somalian | 295 | 280 | 268 | 257 | 281 |
Portuguese | 223 | 239 | 255 | 248 | 300 |
Nigerian | 238 | 203 | 203 | 198 | 199 |
Total foreign national prisoners | 9,089 | 9,308 | 9,815 | 9,682 | 10,321 |
(Ministry of Justice, ‘Offender management statistics quarterly: January to March 2023—annual prison population: 2023’, 27 July 2023, table A1:12i.)
Three prisons are exclusively used for foreign national offenders. They are HMP Huntercombe, HMP Maidstone and HMP Morton Hall. They hold foreign national offenders of interest to the Home Office who have between three and 36 months left to serve. The remainder of FNOs are spread across the prison estate.
1.2 Number of returns of foreign national offenders from the UK
The Home Office publishes quarterly statistics on returns of FNOs in its immigration system statistics. ‘Returned’ FNOs includes both those that are deported and those who agree to return voluntarily.[2]
From 2011 to 2016, the number of FNOs returned from the UK increased from 4,761 to 6,437 per annum.[3] Since then, the number returned from the UK dropped each year between 2016 and 2021 but then started to rise between 2021 and 2023, from 2,706 to 3,926.[4] Figure 1 presents data on the return of FNOs between 2016 and 2023:
Figure 1. Returns of foreign national offenders from the UK, 2016 to 2023

A foreign national offender (FNO) (previously referred to as a ‘foreign national prisoner’) is someone who is not a British citizen and is, or was, convicted in the UK of any criminal offence, or convicted abroad for a serious criminal offence.)
The 3,926 FNO returns in 2023 represented a 27% increase compared to 2022.[5] Almost half (49%) were EU nationals, and 37% were Albanians. It was the first time since 2013 that annual returns of non-EU FNOs had exceeded numbers of returns of EU FNOs. The government has attributed this to the large number of returns of Albanians, following the agreement reached with the Albanian government in December 2022.[6]
2. Legislation giving power to remove foreign national offenders
The Immigration Act 1971 introduced the general grounds for deporting FNOs.[7] It gave the home secretary power to deport non-British citizens where they considered it to be “conducive to the public good”.
The UK Borders Act 2007 placed a statutory duty on the home secretary to make a deportation order in respect of a foreign criminal, subject to specified exemptions.[8] The 2007 act defined a foreign criminal as a person who was not a British citizen or an Irish citizen who had been convicted of an offence in the UK and sentenced to a period of imprisonment of at least 12 months. Exceptions are set out in section 33 of the act and include where the offender was under 18 at the time of the offence or where deportation would breach their rights under the European Convention on Human Rights (ECHR).
The provisions for European Economic Area (EEA) nationals have changed since the UK left the EU. The handling of these FNOs is dependent on when the criminal activity took place and the immigration status of the individual at the time:[9]
- EEA nationals without EU settled status (EUSS) or other protections under the European Union (Withdrawal Agreement) Act 2020 are assessed against the same criminality thresholds that apply to other nationalities. They would be liable to deportation if the secretary of state deemed their deportation to be conducive to the public good under the Immigration Act 1971 or automatic deportation under the UK Borders Act 2007.
- EEA nationals with EUSS or other protections and their non-EEA family members with EUSS family member status or other protections are liable to deportation under the Immigration Act 1971 and the UK Borders Act 2007 if their criminal conduct occurred after 31 December 2020, the end of the Brexit transition period. If the conduct occurred on or before the end of the transition period, an EEA national would be subject to deportation under reserved EEA regulations, specifically section 23(6)(b) of the Immigration (European Economic Area) Regulations 2016. Deportation could only be made on the grounds of public policy, public health, or public security in accordance with section 27 of the 2016 EEA regulations.
The UK does not routinely deport Irish citizens.[10] The government has said that Irish citizens would be considered for deportation only where a court had recommended deportation in sentencing or where the secretary of state concluded that, due to the exceptional circumstances of the case, the public interest required deportation.
3. Process for deporting foreign national offenders
Removal of FNOs is a longstanding government priority.[11] The Home Office considers deportation of all foreign nationals convicted of a crime in the UK and given a prison sentence.
Prisons refer all cases involving foreign nationals to the Home Office’s Foreign National Offenders Returns Command (FNORC) to consider whether deportation based on criminality is appropriate.[12] The FNORC has overall responsibility for the management and removal of FNOs.[13] Prisons which are exclusively used for foreign national offenders or are ‘hub’ prisons have embedded Home Office caseworkers to help progress immigration casework.
An FNO who is not eligible for “automatic” deportation under the 2007 act can be considered for deportation on “conducive to the public good” grounds. Government guidance states its policy is to pursue deportation on grounds of criminality where the person:
- has received a custodial sentence of 12 months or more for a single conviction for a single offence in the UK or overseas (this can be made up of aggregate or consecutive sentences)
- has received combined sentences totalling 12 months or more in the UK or overseas
- has been convicted in the UK or overseas of an offence which has caused serious harm
- is a persistent offender
unless the person is exempt from deportation under the 1971 act. If any of the exceptions set out in section 33 of the 2007 act apply, the secretary of state will consider whether deportation remains appropriate.[14]
The guidance states that deportation can also be pursued for reasons including but not limited to:
- national security
- where a court has recommended deportation
- involvement in gun crime or serious drug offending regardless of the length of sentence received
- where there is compelling circumstantial evidence that the person’s conduct or presence in the UK has or will cause serious harm, but the person has not yet been convicted of a criminal offence
- a relevant person’s involvement in a sham marriage[15]
The Nationality, Immigration and Asylum Act 2002 (as amended) and part 13 of the immigration rules specify various factors which must be regarded when considering whether deportation would breach a foreign criminal’s qualified right to family and private life under article 8 of the ECHR.
Further information on the process for considering deportation of FNOs, including an overview of the need to have regard to article 8 of the ECHR, can be found in the House of Commons Library briefing ‘Deportation and early removal of foreign national offenders’ (2 February 2024).
4. Early removal measures to deport foreign national offenders
FNOs can be removed from the UK before the end of their prison sentence through:
- Prisoner transfer agreements: FNOs serving custodial sentences may be transferred to serve their prison sentence in their home country if it has a reciprocal prisoner transfer agreement with the UK. The UK has 110 prisoner transfer agreements with other countries.[16] Some are compulsory and some require the prisoner’s consent. The government recently agreed a new prisoner transfer agreement with the Philippines (in October 2023) and an implementation package with Albania (in May 2023) in support of the 2022 prisoner transfer agreement.[17] The government has said it is “working hard to ensure that existing [prisoner transfer agreements] work as effectively as possible”.[18]
- Early removal scheme (ERS): This scheme is available to foreign national prisoners liable to removal from the UK who are serving a fixed-term sentence.[19] It is a Ministry of Justice (MoJ) led scheme and allows the removal of FNOs from prison at an “earlier point than would otherwise be possible for the sole purpose of removal or deportation from the UK”. Subject to having served the minimum requisite pre-removal custodial period, an FNO can be released up to 18 months before their earliest release date.[20] The early removal window was increased from 12 months to 18 months on 16 January 2024 under the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023.[21] Once removed, the FNO would not be subject to further imprisonment and would be free once back in their home country; but they could not legally return to the UK. If they did, they would be liable to serve the rest of their sentence from the point they were deported.[22] The Home Office must consider all eligible FNOs under the ERS if it is seeking to deport them.[23] However, in most cases, prison governors are responsible for authorisation over early release and have some grounds to refuse.[24] Section 5 of this briefing gives an overview of recent scrutiny of this scheme.
- Tariff-expired removal scheme (TERS): This is a discretionary scheme also operated by the MoJ but which relies on the Home Office having a deportation order in place.[25] The scheme applies to FNOs serving an indeterminate sentence and gives the secretary of state the power to remove them from prison for the purpose of a deportation from the UK, once their tariff has expired, and without the Parole Board directing release. The TERS is considered when the prisoner has become barrier-free (they have a deportation order), they have exhausted their appeal rights, there are travel documents in place and there are no other obstacles, such as ongoing court proceedings. As with the ERS scheme, the individual would be barred from re-entering the UK and if they did would be liable to be detained and serve the remainder of their sentence.[26]
- Facilitated return scheme (FRS): This is a voluntary Home Office scheme which offers money to help FNOs resettle in their home country if they agree to withdraw any outstanding appeals or applications to stay in the UK.[27] Eligible applicants can receive £1,500 if they are still serving a custodial sentence in the UK or £750 if they have completed their sentence. They also have their flight organised by the Home Office. Government guidance states the primary aim of the scheme is to “encourage FNOs to leave the UK at the earliest possible opportunity, thereby reducing the resources and costs associated with time spent in prison and immigration detention”. With certain exceptions, the FRS is available to all foreign national offenders who are liable to deportation or administrative removal.[28] Categories of FNOs not within the scope of the FRS include those not subject to any enforcement action, such as British citizens, and those unable to depart the UK voluntarily or who have an outstanding claim to remain in the UK.[29]
5. Scrutiny of the early removal measures to deport foreign national offenders
In June 2023 the Independent Chief Inspector of Borders and Immigration published its report on the FNORC operations to remove FNOs.[30] It focused its review on the ERS and FRS between October 2022 and February 2023. The report found:
[…] FNORC to be a large and complex operation which lacked the ability to track and monitor the progression of cases, from initial referral to decision outcome. Staff did not have a clear sense of priorities, and there was a disproportionate focus on managing cases, rather than making decisions and progressing the removal of FNOs.[31]
It concluded that the ERS and FRS were “not being administered effectively”.[32] While the inspection found the FRS saw an improved performance in 2022, it attributed the increase to the effects of a change of policy (to allow EEA nationals to apply) and the focus on removing Albanian nationals.
The chief inspector made four key recommendations:[33]
- Data: Develop a strategy with timebound milestones detailing how FNORC would: consolidate the data it holds; reconcile its data with information managed by other agencies such as HM Prison and Probation service; and ensure it had ready access to “clear, accurate, and consistent information for the cases for which it is responsible”.
- Performance reporting: Undertake a review of the monthly FNORC performance pack to ensure future workflow measurements and key performance indicators focused on business objectives and on driving improvement.
- Review of caseworking: Conduct a thorough end-to-end review of the FNORC caseworking functions to eradicate duplication, align team structures, and drive efficiencies in caseworking to enable more timely decisions within the early removal window. Ensure staff have a thorough understanding of any changes that were made and that priorities were clearly communicated and understood.
- Case ownership and management: Develop a process which enabled foreign national offender cases to be tracked and owned from referral to decision outcome, with clear ownership, timelines for key activities, and checks in place to ensure that cases were not overlooked.
The government accepted or partially accepted all the recommendations.[34] The government’s response set out which recommendations it has accepted in full and which it has partially accepted.
However, the government also argued the report had underplayed the “complexities associated with the FNO process”.[35] It contended that FNO process was “not simple and linear; it is complicated and has many interdependencies”. The government highlighted issues such as delays caused by multiple and successive claims, non-compliance by FNOs in their re-documentation and removal, and the Covid-19 pandemic.
In October 2023, the government introduced changes to the ERS under the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023, which extended the removal window from 12 months to 18 months (subject to the minimum required proportion of time having been served). When the order was laid before Parliament, the House of Lords Secondary Legislation Scrutiny Committee raised concerns, suggesting that insufficient background policy information had been provided to scrutinise or assess the legislation effectively.[36] It said a number of issues had been left out of the explanatory material including:
- essential elements of the policy making process, such as an analysis of the types of case in which FNOs had previously been released and removed
- estimation of how many prisoners would be affected
- an analysis of the types of offence for which FNOs would be released and removed
- consideration of whether the measures might reduce the deterrent to commit the crimes in the first place
The committee drew the legislation to the special attention of the House of Lords on the “ground that the explanatory material laid in support provides insufficient information to give a clear understanding about the instrument’s policy objective and intended implementation”.[37]
The government has said the change would save money and reduce pressure on the prison system. Speaking for the government during the debate on the legislation in the House of Lords, Lord Bellamy set out the government’s policy aim to balance deterrence and victims’ rights against the need to reduce the FNO population in the prison estate:
[A] measure of this kind involves making a series of balances between the possible effects on victims and the possible effect on deterrence, as against the severe constraints on prison capacity and the cost to the taxpayer of holding those prisoners. These matters are weighed very carefully by the government. It is the government’s duty to reach conclusions on such matters and, as part of the wider policy, this instrument strikes the appropriate balance.[38]
In a statement to the House of Commons on 12 March 2024, Lord Chancellor and Secretary of State for Justice Alex Chalk said that following the introduction of the ERS changes “almost 400 [FNOs] have already been removed from the UK through this and similar schemes since January”.[39] Mr Chalk said this was a “61% increase compared with the equivalent period a year earlier”.
Mr Chalk also set out in his statement other government measures to reduce the foreign national prison population, including increasing the number of caseworkers and streamlining the removal process:
I can tell the House that we will radically change the way that FNO cases are processed. We have created a new taskforce across the Home Office and Ministry of Justice, including the Prison Service, Immigration Enforcement, and the asylum and modern slavery teams. We have surged 400 additional caseworkers, who will be in place by the end of March, to prioritise these cases, and we will streamline the end-to-end removal process.
We are also expanding the number of FNOs we can remove—for example, by bringing forward legislation to allow us to remove foreign offenders with limited leave to remain under conditional caution, and amending our deportation policy so that we can remove those on suspended sentences of six months or more. We are making more use of the diplomatic levers we have to remove people back to their home countries, including by expediting prisoner transfers with our priority countries; concluding new transfer agreements with partner countries such as Italy; and being prepared to make use of the powers provided under the Nationality and Borders Act 2022 to restrict visas for any country where no progress on FNO removals can be made. That will allow us to deport more FNOs directly from prison in 2024—more than double the 1,800 we removed last year and more than in any year since 2010. [40]
6. Read more
- House of Commons Library, ‘Deportation and early removal of foreign national offenders’, 2 February 2024
- Home Office, ‘Conducive deportation’, 15 March 2024
- Home Office ‘The early removal scheme’, 27 February 2024
- Ministry of Justice, ‘Offender management statistics bulletin, England and Wales: Quarterly—July to September 2023’, 25 January 2024
- Home Office, ‘How many people are detained or returned?’, 29 February 2024
Cover image by Larry Farr on Unsplash.
References
- Ministry of Justice, ‘Offender management statistics quarterly: July to September 2023’, 25 January 2024. Return to text
- Home Office, ‘How many people are detained or returned?’, 29 February 2024. Return to text
- Independent Chief Inspector of Borders and Immigration, ‘An inspection of the Home Office’s operations to effect the removal of foreign national offenders: October 2022–February 2023’, June 2023, p 13. Return to text
- Ministry of Justice, ‘Immigration system statistics data tables: Returns summary tables, year ending December 2023’, 29 February 2024, table Ret 02a. Return to text
- Home Office, ‘How many people are detained or returned?’, 29 February 2024. Return to text
- Prime Minister’s Office, 10 Downing Street, ‘UK-Albania joint communique: Enhancing bilateral cooperation in areas of common interest’, 13 December 2022. Return to text
- Independent Chief Inspector of Borders and Immigration, ‘An inspection of the Home Office’s operations to effect the removal of foreign national offenders: October 2022–February 2023’, June 2023, p 9. Return to text
- Home Office, ‘Conducive deportation’, 15 March 2024, p 10. Return to text
- Independent Chief Inspector of Borders and Immigration, ‘An inspection of the Home Office’s operations to effect the removal of foreign national offenders: October 2022–February 2023’, June 2023, p 10. Return to text
- Home Office, ‘Conducive deportation’, 15 March 2024, p 13. Return to text
- HC Hansard, 24 October 2023, col 767. Return to text
- Home Office, ‘Conducive deportation’, 15 March 2024, p 17. Return to text
- Independent Chief Inspector of Borders and Immigration, ‘An inspection of the Home Office’s operations to effect the removal of foreign national offenders: October 2022–February 2023’, June 2023, p 10. Return to text
- Home Office, ‘Conducive deportation’, 15 March 2024, p 11. Return to text
- As above. Return to text
- House of Commons, ‘Written question: Prisoners’ transfers (11410)’, 1 February 2024. Return to text
- Ministry of Justice, ‘UK and Albania agree groundbreaking new arrangement on prisoner transfers’, 24 May 2023. Return to text
- HC Hansard, 27 June 2023, col 130. Return to text
- Home Office ‘The early removal scheme’, 27 February 2024, p 6. Return to text
- The Home Office’s guidance on the scheme sets out the requisite custodial periods: As above, pp 14–15. Return to text
- As above, p 7. Return to text
- Explanatory memorandum to the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023, p 1. Return to text
- Independent Chief Inspector of Borders and Immigration, ‘An inspection of the Home Office’s operations to effect the removal of foreign national offenders: October 2022–February 2023’, June 2023, p 72. The Home Office guidance sets out the eligibility criteria: Home Office, ‘The early removal scheme’, 27 February 2024, p 9. Return to text
- Home Office, ‘The early removal scheme’, 27 February 2024, p 9. Return to text
- Parole Board, ‘Foreign national prisoners: Member guidance’, December 2023, p 8. Return to text
- As above, p 9. Return to text
- Home Office, ‘The facilitated return scheme’, 12 March 2024, p 5. Return to text
- As above, p 9. Return to text
- As above, p 12 Return to text
- Independent Chief Inspector of Borders and Immigration, ‘An inspection of the Home Office’s operations to effect the removal of foreign national offenders: October 2022–February 2023’, June 2023. Return to text
- As above, p 2. Return to text
- As above. Return to text
- As above, p 8. Return to text
- Home Office, ‘Response to an inspection of operations to effect the removal of foreign national offenders (FNOs)’, 29 June 2023. Return to text
- As above. Return to text
- House of Lords Secondary Legislation Scrutiny Committee, ‘Lords committee raises concerns about foreign prisoner deportation law’, 26 October 2023. Return to text
- As above. Return to text
- HL Hansard, 26 October 2023, col 688. Return to text
- HC Hansard, 12 March 2024, cols 155–8. Return to text
- As above. Return to text