DescriptionDeportation decisions about a foreign national offender (FNO) are binary: to deport or not to deport. This is unusual. Sentencing for criminal offending offers the judge options – including fines, community sentences, and custodial sentences – that proportionately reflect both justice for the individual and the social harm that their offending caused.
The binary nature of deportation is problematic because it creates “hard cases”. UK deportation law considers whether a FNO ought to be deported by reference to both fixed qualifying rules and subjective assessments. “Hard cases” arise when an individual falls marginally short of fixed qualifying criteria, and where there is uncertainty in the application of subjective criteria.
This presentation proposes a form of “suspended deportation order” as a third possible disposal which would sit between the existing binary options of deport or not to deport. Such orders would work similarly to suspended prison sentences that offer a ‘chance to stay out of trouble and to comply with … requirements set by the court’ (Sentencing Council). The option to suspend a deportation order must be considered by decision-makers under the Article 8 ECHR question of the ‘least restrictive means’. This is to avoid the problem of sanction inflation that has frequently accompanied the introduction of suspended prison sentences.
|16 Sep 2021
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