Deporting EU national offenders from the UK after Brexit: Moving from a system that recognises individuals, to one that sees only offenders
| Author | Jonathan Collinson |
| Published date | 01 December 2021 |
| DOI | 10.1177/20322844211061217 |
| Date | 01 December 2021 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(4) 575–593
© The Author(s) 2021
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DOI: 10.1177/20322844211061217
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Deporting EU national
offenders from the UK after
Brexit: Moving from a system
that recognises individuals, to
one that sees only offenders
Jonathan Collinson
Huddersfield Law School, University of Huddersfield, Huddersfield, UK
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.
Keywords
Foreign national offenders, deportation, citizens’rights directive, Brexit
Corresponding author:
Jonathan Collinson, University of Huddersfield, Queensgate, Huddersfield HD1 3DH, UK.
Email: j.m.collinson@hud.ac.uk
Introduction
This article compares the law that UK authorities apply to EU nationals and non-EU nationals who
have committed criminal offences in the UK, and whom the UK is seeking to deport. It 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 non-EU nationals, and to EU nationals after Brexit, sees only the
label of ‘offender’.
Part 2 of this article describes the pre-Brexit (2.1) and post-Brexit (2.2) rules for deporting EU
national offenders from the UK. Part 2.3 challenges the extent to which the pre-Brexit deportation
rules for EU nationals were straight-jacketed by EU law.
The central original argument of this article is that the post-Brexit UK deportation law treats the
foreign national offender (FNO)
1
as a different kind of human than did the EU derived law. This
article argues that the law that applied to EU national offenders before Brexit was focussed on the
individual, whereas the post-Brexit rules focus on the status of offender. In part 3.1, the article
argues that the focus of the pre-Brexit deportation rules required individualised rationales for
deportation and prohibits justifications based solely on the fact of past offending. In contrast, the
post-Brexit rules justify deportation because of the status of ‘offender’alone: a status that is
determined by prior conviction, is hard to lose and makes limited space for considering re-
habilitation. Part 3.2 identifies that the future-orientation of pre-Brexit rules also encouraged UK
courts to focus on the foreign national offender as an individual who is capable of rehabilitation and
reform.
This article is significant for its direct comparison between the different deportation regimes
applicable in UK law to EU national offenders before and after Brexit. Academic literature to date
has focussed either on the deportation provisions of the Citizens’Rights Directive alone or on UK
deportation law. Comparing the two regimes is of particular importance in the present moment
because Brexit heralds the transition of EU nationals living in the UK from governance under one
regime to the other.
This article is also significant because it is concerned with what kind of human each legal regime
conceives the FNO as being. Many of the cases considered here have been analysed in the context of
what they tell us about developing conceptions of EU Citizenship.
2
This article uses a different
analytical lens: instead of identifying legal distinctions between citizen and alien, this article
examines what kind of human being is conceptualised in the different deportation regimes. It also
differs from analyses which highlight the distinction between a rights-based approach to the
migration of EU nationals within the EU, and a permissions-based approach to the immigration of
1. The author is acutely aware of the irony of (at least implicitly) championing law which conceptualises foreign national
offenders as an individual human being, whilst consistently using the label of ‘foreign national offender’(or worse, the
abbreviated FNO) to describe this group of individuals. It remains difficult to square the circle of readability and
humanisation.
2. See for example, Dimitry Kochenov and Benedikt Pirker, ’Deporting the Citizens within the European Union: A Counter-
Intuitive Trend in Case C-348/0 9, P.I. V Oberburgermeisterin der Stadt Remsc heid’(2013) 19 Colum J Eur L 369;
Theodora Kostakopoulou and Nuno Ferreira, ‘TestingLiberal Norms: The PublicPolicy and Public Security Derogations
and the Cracks in European Union Citizenship’(University of Warwick Schoolof Law, Legal Studies Research Paper No.
2013-18) <http://sro.sussex.ac.uk/id/eprint/63227/1/Testing%20Liberal%20Norms%20-%20working%20paper.pdf>
accessed 29 July 2021; Valsamis Mitsilegas, ‘European Criminal Law and the Dangerous Criminal’(2018) 25
Maastricht Journal of European and Comparative Law 733.
576 New Journal of European Criminal Law 12(4)
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