message to the electorate that all the possible measures were being adopted to tackle immigration lawbreaking.7 In addition to the existing offences of fraud, others were added to the catalogue of immigration offences. In turn, these offences started to be more strictly enforced. While criminal law provisions have been used in the past against people with false documents seeking to enter the country — particularly those in transit to other countries to claim asylum,8 since the mid-1990s there has been a noticeable increase in the enforcement of fraud-related offences.9 Just one of the new crimes introduced in section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 — being unable to produce an immigration document at a leave or asylum interview on entering the UK — accounted for a 44 per cent increase of total proceedings on immigrationrelated cases at magistrates’ courts between 2004 and 2005. In 2005 alone, 475 people were proceeded against for this offence. Similarly, since the offence of using deception to enter and remain was modified by the Asylum and Immigration Act 1999 to cover a broader set of conducts (seeking the avoidance, postponement or revocation of enforcement actions by deception), rates of prosecutions and convictions have sharply increased.10 Still, most immigration offences are not prosecuted as they are considered by the UK Border Agency as low-level matters best dealt with through administrative removal. Only when removal is not viable is a prosecution initiated. Restrictive immigration policies which have been increasingly backed up with criminal law powers and stricter enforcement of these powers have led to a rising number of people imprisoned for noncompliance with immigration rules. To reduce the criminal justice system’s backlog, in December 2010, the Coalition government launched a number of pilots to divert cases of document fraud and deception involving foreign nationals away from the criminal justice system through the use of simple caution and removal.11 However, the number of cases diverted was very small: simple caution was used in only five out of 109 eligible cases.12 Other measures to reduce the number of foreigners in prison include the removal of prosecution targets for immigration offences established by UKBA in 2008 and the introduction of early removal schemes and more effort to repatriate foreign national offenders to serve their sentences in their own countries.13 While the green paper in which some of the measures described above were laid out also announced an overhaul of the sentencing framework, no proposal was made to modify pre-trial and sentencing norms applying to non-nationals. These norms as they stand and as they are applied by the courts have contributed to the growing proportion of foreigners accused of immigration offences behind bars. ‘Immigration offenders’ are not only foreigners; they frequently have no residence or close ties to the country. Many do not have family or friends. They are ‘illegal,’ ‘irregular’ and due to be expelled. Such factors generally make it difficult for these people to obtain bail and thus explain the high levels of untried foreigners in prison. In 2009, 15 per cent of foreign national prisoners were untried, compared to 9 per cent among British national prisoners.14 As I will show below, matters are compounded by the manner in which foreigners in general and those accused of immigration offences in particular are very likely to be punished with custodial sentences in case of conviction. . . . matters are compounded by the manner in which foreigners in general and those accused of immigration offences in particular are very likely to be punished with custodial sentences in case of conviction. 7. 8. 9. 10. 11. 12. 13. 14. 40 Sentencing decisions in immigration-related cases Concerns about proportionality and social justice in sentencing have tended to focus predominantly on Spencer, S. 2007. Immigration. In: Seldon, A. (ed.) Blair’s Britain 1997-2007. Cambridge: Cambridge University Press. Dunstan, R. 1998. United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention. International Journal of Refugee Law, 10, 205-213. Home Office. 2010. Control of immigration: Statistics United Kingdom 2009. London: Home Office. Cmnd 15/10, p. 35. Home Office. 2006. Control of Immigration: Statistics United Kingdom 2005. London: Home Office. Cmnd 6904, p. 25. Ministry of Justice. 2010. Simple Cautions for Foreign National Offenders Pilot Policy Statement. London: Ministry of Justice. Response to a FOI request, 2 March 2012 (Ref 21732). Ministry of Justice. 2010. Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders. London: Ministry of Justice, p. 66. Ministry of Justice. 2010. Offender Management Caseload Statistics 2009. London: Ministry of Justice, p. 51. Prison Service Journal Issue 205