Deporting EU national offenders from the UK after Brexit: Moving from a system that recognises individuals, to one that sees only offenders

Abstract

Deportation is a core state practice for the management and control of time-served foreign national offenders. Post-Brexit law changes mean that EU national offenders in the UK will become subject to the same deportation rules which apply to non-EU national offenders. This article argues that the law that applied to EU national offenders before Brexit, derived from the EU’s Citizens’ Rights Directive, was underpinned by a focus on the offender as an individual person. In contrast, UK deportation law that applies to third-country nationals, and to EU nationals after Brexit, sees only the label of ‘offender’. This argument is made by examining two important elements of the contrasting deportation laws: the permitted justifications for deportation and the importance of rehabilitation. On permitted justifications for deportation, the Citizens’ Rights Directive requires individualised rationales for deportation and prohibits justifications based solely on the fact of past offending. This future-orientation also encouraged UK courts to focus on the foreign national offender as an individual who is capable of rehabilitation and reform, whereas the UK’s post-Brexit rules justify deportation on the basis of the status of offender: a status that is determined by prior conviction, is hard to lose and makes limited space for considering the potential for rehabilitation.