Number
Prison Service Instruction
14/2009
Foreign National Prisoners liable to removal from the UK: Parole
Board responsibility for release decisions
PSO 6000 – Parole, Release and Recall
Implementation Date
22 June 2009
21 June 2010
CONTAINS MANDATORY INSTRUCTIONS
For Action
Monitored by
Prison Governors and Directors of Contracted
Prisons
Area managers, Directors of Offender
Management, Office of National Commissioning
For Information
On authority of
All staff
NOMS Management Board
Contact Point
Release Policy Team, Sentencing Policy and Penalties Unit: Steve Bailey
Tel: 020 3334 5026
E-mail: stephen.bailey@justice.gsi.gov.uk
Other Processes Affected
None.
NOTES
Governors and Directors of Contracted Prisons must ensure that discipline / custody office staff are
familiar with this Instruction.
References to Governors apply also to Controllers of Contracted Prisons.
Issued
12/06/09
PSI 14/2009
Page 1
Purpose
1. This PSI is to inform prisons about a change in the release provisions relating to Foreign
National Prisoners (FNPs) who are liable to removal from the UK and serving sentences of
four years or more under the Criminal Justice Act 1991. Previously, when such prisoners
reached the half-way point in their sentence, applications for their early release could only be
determined by the Secretary of State. Following the commencement, on 14 July 2008, of
section 27 of the Criminal Justice and Immigration Act (CJ&IA) 2008, these prisoners are now
eligible to be considered for release on parole by the Parole Board in the same way as other
prisoners serving four years or more under the 1991 Act.
2. This means that the Parole Board now deals with deportee cases as well as domestic cases.
The parole process, timetable and setting of licence conditions is now the same for foreign
nationals liable to removal as it is for domestic prisoners. However, this is subject to the
application of section 26 of the CJ&IA 2008 and / or the Early Removal Scheme (ERS) – see
guidance below.
Mandatory Action
3. Governors are required to ensure that all foreign national prisoners affected by this change are
referred to the Parole Board in the same way as other determinate sentence prisoners serving
four years or more under the 1991 Act who are eligible for parole.
4. For the purposes of the Inmate Information System (IIS), FNPs affected by this change should
still be entered on the system as deport cases.
5. In cases where the Parole Board recommends that the prisoner should be released, the
Secretary of State is bound to give effect to that recommendation. Where this relates to a FNP
liable to removal, the prison should liaise directly with United Kingdom Borders Agency (UKBA)
to make arrangements for the prisoner’s deportation or immigration detention should the
Parole Board recommend release. (Prior to this change, the Pre-Release team in the Public
Protection Casework Section was responsible for liaising with UKBA on these deportee cases.)
6. If the prisoner’s immigration status changes during the course of the parole process, the prison
must notify the Parole Board.
Section 27 of the Criminal Justice and Immigration Act 2008 – consideration by the Parole
Board
7. Section 27 was introduced following the Judicial Reviews brought by Hindawi and Headley.
The House of Lords declared that the differential release provisions for FNPs were
discriminatory in that they prevented prisoners liable for removal from having their cases
reviewed by the Parole Board in the same way as other long-term prisoners and were
therefore incompatible with the European Convention on Human Rights. Section 27 CJ&IA
2008 was introduced in response to that.
8. Under this provision, all FNPs liable to removal from the United Kingdom and sentenced under
the provisions of the CJA 1991 to sentences of 4 years and over are no longer ineligible, at the
half-way point of sentence, to have their cases considered by the Parole Board for early
release on licence under section 35(1) of the 1991 Act.
Order ref. 6000
Issue date 12/06/09
PSI 14/2009
Page 2
Section 26 of the Criminal Justice and Immigration Act 2008 – automatic release
arrangements for FNPs serving sentences of 4 years or more under the 1991 Act
9. Under Section 26 of the 2008 Act, prisoners serving sentences of 4 years or more under the
1991 Act, whose half-way point in sentence (Parole Eligibility Date) falls on or after 9 June
2008 are now subject to automatic release on licence (unless they are serving sentences for a
dangerous offence, for example sexual or violent offence as listed in Schedule 15 of the
Criminal Justice Act 2003). The licence then remains in force until the Sentence Expiry Date
(SED), rather than the three-quarter point as it would have done under the 1991 Act.
Guidance relating to this change is contained in PSI 17/2008.
10. FNPs liable to removal who are serving sentences of 4 years or more under the 1991 Act and
whose PED falls on or after 9 June 2008 (apart from dangerous offenders) are subject to
conversion under section 26 and should therefore be released automatically at the half-way
point, unless they are detained beyond that point by immigration powers. Such cases are not,
therefore, referred to the Parole Board and Governors are responsible for approving all licence
conditions on behalf of the Secretary of State. And in the case of FNPs due to be deported on
release, and subject to Section 26 automatic release, establishments should liaise directly with
UKBA to make arrangements for release and removal.
11. It should be noted that prisoners should not be released to UKBA for deportation any earlier
than the date on which they are subject to release under the legislation governing the release
of prisoners, or under the provisions of the Early Removal Scheme – see below.
Foreign National Prisoners subject to the Early Removal Scheme (ERS)
12. FNPs liable to removal should be considered for the Early Removal Scheme. The scheme has
been extended so that eligible prisoners can be removed up to a maximum of 270 days before
their date of release (increased from 135 days). Guidance on the effect of this extension to the
ERS is contained in PSI 19/2008, including the revised timetable for processing ERS cases
which now begins 65 weeks before PED for those subject to the maximum 270 day period.
13. Under the ERS, those FNPs serving a sentence of 4 years or more under the 1991 Act for a
sexual or violent offence specified in Schedule 15 of the CJA 2003 should be referred to the
Parole Board for an enhanced risk assessment, in accordance with the revised timetable in
PSI 19/2008. All other prisoners should be considered for early removal at the discretion of the
governor, unless he or she considers there to be ‘exceptional and compelling reasons’ to
refuse.
Prisoners to whom the changes in Section 27 will apply
14. There will, in practice, be a limited number of FNPs liable to removal and serving 4 year plus
sentences under the 1991 Act who will not now either be released automatically at the halfway point as a result of Section 26 and / or removed early under the ERS. Only those FNPs
who fall into this category and who are not subject to automatic release and / or ERS will need
to be considered for release by the Parole Board in the same way as domestic prisoners,
following the commencement of section 27. All dossiers, for prisoners to whom Section 27
applies, must include relevant immigration documentation that demonstrates the prisoner is
liable for removal.
Reminder: Parole decision must be obtained before removal
15. Establishments are reminded that, for cases that have been referred to the Parole Board for a
decision on release, no removal action can be taken by UKBA until the Board’s decision to
release has been received. Only when a positive parole decision has been received can the
establishment make arrangements with UKBA for the prisoner’s removal.
Order ref. 6000
Issue date 12/06/09
PSI 14/2009
Page 3
Contacts:
If you require further information about this Prison Service Instruction please contact:
Release Policy Team, Sentencing Policy and Penalties Unit: Steve Bailey
Tel: 020 3334 5026
E-mail: stephen.bailey@justice.gsi.gov.uk
(signed)
Michael Spurr
Chief Operating Officer
Order ref. 6000
Issue date 12/06/09