Immigration enforcement extended to the criminal courts

21 December 2017

Recently, the Criminal Procedure (Amendment No. 4) Rules 2017 came into force. The rules amend the Criminal Procedure Rules 2015 to impose an obligation upon the criminal courts to require defendants to state their name, date of birth and nationality at the first hearing at which they appear in court, either in writing or orally. The rules also give the courts discretion to require that information again at any subsequent hearing. Failure on the part of the defendant to comply without ‘reasonable excuse’ now constitutes a criminal offence, punishable by a period of imprisonment not exceeding 51 weeks or a fine of an unspecified amount.

Whilst this initially seems straightforward, the requirement contains an important caveat: failure to comply does not only refer to absolute non-disclosure, it is also taken to include the provision of ‘false or incomplete information’. This raises a number of questions regarding the implementation of these rules and how those with uncertain immigration statuses will be treated in practice.

In theory, for British citizens with passports, this should not be an issue. But what will happen to those who cannot evidence their nationality? Will they be punished for not owning a passport?

What about those who consider themselves to be British, because they have lived here most or all their lives, but in fact never acquired citizenship?

Will those who ‘honestly but wrongly’ believe they are not dual nationals, such as Australian senator Malcolm Roberts , be convicted of a criminal offence for being unaware of nationality law?

How will stateless individuals and refugees who have fled their countries due to persecution be treated by the courts? This is particularly poignant given that UNHCR estimates at least 10 million people around the world are currently stateless. 

Unfortunately, the new rules do not offer any guidance in answer to these questions. It seems unfair and illogical to penalise the average person simply for not possessing the correct documentation, or even for being ill-informed on nationality law.

As the rules confer power on the criminal courts already hearing the defendant’s case to consider this new offence simultaneously, the implication is that the judiciary will be able to exercise its discretion in determining whether any of the above scenarios constitute a ‘reasonable excuse’. One would hope that common sense will prevail in these circumstances, although the government has left considerable room for judgment and openly admits that the spirit of this requirement is to ‘remove as many Foreign National Offenders (“FNOs”) as quickly as possible’. The proper role of the criminal courts is being stretched to its limits, as judges are compelled to take on the new and complex task of immigration control.

Making nationality one of the first issues to be dealt with in criminal proceedings also has the potential to jeopardise defendants’ right to a fair trial, a point that human rights organisations, such as Liberty and Transform Justice, have highlighted.   There is a real danger that the obligation to disclosure nationality whenever required by a court may find defendants, if so required at the beginning of their trial, being tried by juries who are prejudiced against them on account of their nationality before the facts have even been presented.

In most criminal cases, where nationality is irrelevant, this is an unnecessary extension of power that can unfairly impact the outcome of defendants’ trials. Whilst the government continues to implement policies intended to create a ‘hostile environment’ for illegal immigrants, this requirement can be seen as taking one step further. The rules have the potential to negatively influence the outcome of a trial on account of the defendant’s nationality, regardless of whether they are an illegal immigrant or not.

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