Sentencing in immigration-related cases: the impact of deportability and immigration status Dr Ana Aliverti is a Howard League Postdoctoral Fellow, at the Centre for Criminology, University of Oxford. Introduction Over the last few decades, European prisons have held an increasing proportion of foreigners.1 In some countries, such as Switzerland (71.4 per cent), Luxembourg (68.7), Cyprus (58.9) and Belgium (41.1), the percentage of foreigners in prison is vastly disproportionate to their numbers in the community.2 In the prisons of England and Wales, 14 per cent are citizens of elsewhere, well below the European average of 20 per cent, yet still out of sync with the general community where foreigners constitute only 8 per cent of the population.3 In England and Wales as elsewhere, the numbers of foreigners incarcerated have grown steadily over a relatively brief period of time, expanding from 8 per cent in 1999 to 12 per cent in 2004 and 14 per cent in 2009. These increases have been out of step with the overall growth of the prison estate, with foreign nationals increasing by 113 per cent between 1999 and 2008, a decade in which the overall population expanded by 20 per cent.4 These days virtually all prisons in England and Wales hold some foreigners. Nonetheless, the population is not distributed evenly around the country, concentrated instead in London prisons, where they account for 25 to 48 per cent of the total sum behind bars.5 As with British citizens, foreigners are incarcerated for a range of offences. They cluster in certain areas, however, and are particularly overrepresented in the group held for ‘fraud and forgery’ offences and ‘drug offences.’ In 2009, half of those in prison under an immediate custodial sentence for ‘fraud and forgery’ were foreign nationals and 20 per cent of the prison population under an immediate 1. 2. 3. 4. 5. 6. custodial sentence for drug offences were foreigners. For other type of offences, non-nationals serving immediate custodial sentences represent between 4 per cent (burglary offences) and 11 per cent (motoring and sexual offences) of the total prison population by offence. Recent figures from the Home Office show that by March 2012, 1,053 people were in prison for a number of offences under immigration acts and other related offences —such as deception and document fraud.6 Despite the increasing number of foreign nationals in prison for so-called ‘immigration offences’ and the impact of this upward trend on the general prison population, little is known about why this group of prisoners is steadily growing. In this article I explore possible reasons for this trend, finding increasingly restrictive immigration policies, rigid rules that mandate custodial sentences in cases involving immigrationrelated suspects and the inflexible observance of them by the judiciary as contributing factors. Immigration, illegality and criminalisation The growing prison population of foreigners convicted for immigration-related crimes is directly linked to tighter immigration controls. Since the mid1990s successive administrations have introduced measures to restrict the number of unauthorised immigrants while closing down legal channels for immigration to the country. In the early 2000s, the abuse of the asylum system by ‘bogus’ asylum seekers became a high priority for the Labour administration after it turned into a point of attack by the opposition and the tabloid media. As a consequence, an important number of criminal offences were introduced during this period. The creation of new offences sent the Eg Melossi, D. 2003. ‘In a Peaceful Life’: Migration and the Crime of Modernity in Europe/Italy. Punishment & Society, 5, 371-397; Wacquant, L. 2006. Penalization, Depoliticization, Racialization: On the Over-incarceration of Immigrants in the European Union. In: Armstrong, S. & McAra, L. (eds.) Perspectives on Punishment. New York: Oxford University Press; De Giorgi, A. 2010. Immigration control, post-Fordism, and less eligibility: A materialist critique of the criminalization of immigration across Europe. Punishment & Society, 12, 147-167. International Centre for Prison Studies, World Prison Brief, available at http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=132 (last accessed: 8 May 2012). Rienzo, C. & Vargas-Silva, C. 2011. Migrants in the UK: An Overview. Migration Observatory, available at http://www.migrationobservatory.ox.ac.uk/briefings/migrants-uk-overview (last accessed: 27 September 2012). Ministry of Justice. 2010. Offender Management Caseload Statistics 2009. London: Ministry of Justice, p. 78. Hammond, N. 2007. United Kingdom. In: van Kalmthout, A., Meulen, F. H.-v. & Dünkel, F. (eds.) Foreigners in European Prisons. Nijmegen: Wolf Legal Publishers, p. 815. Data provided by the Minister for Immigration, Damian Green MP, and taken from the National Offender Management Foreign National Database (caseworking database owned by the Criminal Casework Directorate). Issue 205 Prison Service Journal 39