International prisoner transfer: serving a sentence back in the UK

2 March 2022

The news is never short of horror stories involving travellers who find themselves detained in a foreign country.  This is sadly a reality for thousands of British citizens who, for a variety of reasons, are being held in a prison abroad.

Being detained overseas can be a distressing experience for prisoners, as well as their families and friends. The feeling of isolation in prison can be compounded by the individual not understanding the language of the country they are being detained in, being unable to access information about their rights and/or being held in poor prison conditions.

For many people in this position, transferring to a UK prison to serve their sentence would be hugely beneficial to their prospects of rehabilitation, as well as their physical and mental wellbeing.

There are a number of criteria which must be met before a transfer can be considered by the UK authorities, and even if they are met there is no automatic right to transfer. We will consider these conditions below and also the potential benefits if transfer is successful.

Conditions for Transfer

In order for a sentence to be transferred, the UK must have an agreement in place with the country in which the sentence has been imposed. There are various country specific agreements in place and the relevant agreement should be checked in each case. Generally, however, the  conditions for transfer to the UK are that a person must:

  • be a British citizen or have close family ties with the UK (normally through permanent residence in the UK)
  • not be awaiting trial
  • have exhausted all appeals against conviction and/or sentence (note that it is still possible to apply if there is an appeal pending at the European Court of Human Rights.)
  • have at least 6 months of their sentence left to serve when applying for transfer (however, sentences of less than 6 months can be considered if there are ‘exceptional circumstances’)
  • have no outstanding fines or other non-custodial penalties

The offence which the person was  convicted of must also be a criminal offence in the part of the UK to which transfer is sought. 

What are the benefits of transferring a sentence to the UK?

There are various potential benefits to transferring a sentence to the UK, although many of these are fact specific depending on the country of detention.

  • Prison conditions: The conditions in a UK prison may be better than the prison conditions in the country of sentence. It may be easier to access health care or specific medications in prison in the UK.
  • Being closer to friends and family:  Serving a sentence physically closer to friends and family makes it easier for them to visit.
  • Courses/work opportunities in prison: There may be more courses available in a UK prison which can help to prepare for release in the UK. There may also be the opportunity to work and gain new skills in UK prison which may not be as readily available in prison abroad.
  • Language:  Being detained in a country where you do not understand the language can be isolating.
  • Release date: Once transferred the amount on the sentence remaining at point of transfer will be treated as if it were a sentence imposed in the UK and the release provisions in the UK will apply to the sentence (see below). This will not change the length of  sentence, but may alter the time spent in custody . In many cases this can be less than the time which would have been spent in custody in the sentencing country. Where the maximum sentence in the UK is less than the sentence imposed, the sentence on transfer will be reduced to the UK maximum.
  • Combined sentences: In some countries, courts can order what is called a ‘combined sentence.’  This is a sentence which is part custodial and part suspended. Under the Convention, it is not possible to transfer the suspended part of the sentence to the UK and this may fall away if transfer is authorised. 

How long will a person serve in the UK?

The UK authorities will be responsible for enforcing the sentence that given in the sentencing state upon transfer. The part of the sentence that to be served in the UK is called a “balance to serve.” If the person has not begun serving any part of their sentence before transfer, this will be the full sentence. However, any time has already been spent in custody  (i.e. awaiting trial it will be reduced by the amount of time already served). 

If the offences were committed before 1 February 2015, the person will be released automatically and unconditionally at the half-way stage of the ‘balance to serve’. If the offence was committed  after 1 February 2015, the person will also be released at the half-way point but  will be placed on licence in the community until the end of the ‘balance to serve’ period. 

How long will it take to transfer a sentence?

If the authorities agree to the transfer, the time it takes to effect the transfer can vary significantly. It can take a number of months or even years in some cases. As it involves both states communicating with each other the timeline is dependent on how long it can take for the relevant paperwork to be transferred to the British authorities and for certain checks to be carried out. For example, the Home Office must run checks to confirm that the individual is a British citizen.

In order to ensure that the transfer can be affected as soon as possible the request should be made at the earliest opportunity.

Conclusion

This can be a difficult situation to navigate, particularly a person is already facing the difficulties of a prison sentence. Where a request for transfer is being considered, legal advice should be sought to give the sentenced person  the best chance of serving their sentence closer to home. 

FURTHER INFORMATION

For further information on issues raised within this blog, please contact a member of our criminal team.

 

ABOUT THE AUTHOR

Maeve Keenan is an Associate in the Criminal Litigation team. She has represented clients on a wide range of general crime matters including road traffic, public order, allegations of serious violence and both historical and current sexual offences. She is instructed on cases ranging from the initial stages of criminal investigations through to trials, including working on a number of Crown Court matters since qualification.

 

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