Legal Commentary
| Author | Nigel Stone |
| DOI | 10.1177/147322540200200105 |
| Published date | 01 April 2002 |
| Date | 01 April 2002 |
| Subject Matter | Articles |
Legal Commentary
‘Recommendations for Deportation’and ‘Shorter
Terms of Section 91 Detention’
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies,
University of East Anglia, Elizabeth Fry Building, Norwich, NR4 7TJ. Email:
n.stoneVuea.ac.uk
1. Recommendations for Deportation
Given the considerable number of persons migrating to Britain, in many instances from
countries experiencing considerable tensions and upheaval, including an increased incidence of
unaccompanied minors arriving in this country, it seems timely to review the power of criminal
courts to recommend to the Secretary of State that an offender should be deported, identifying
some of the ambiguities that can be encountered, particularly in respect of younger offenders.
The power of recommendation
This discretionary power under section 3(6) of the Immigration Act 1971 arises where a
defendant who is not a British citizen, aged 17 or older at time of conviction, is convicted of
an offence punishable in the case of an adult with imprisonment. Special considerations apply
in respect of nationals of the European Community because of the fundamental right of free
movement of workers under the Treaty of Rome.
Where a court is considering exercising this power the defendant should be given a
minimum of seven days notice so that the defence can make representations against use of this
measure and it is not simply included as an afterthought. A recommendation should not be
made as part of the punishment felt justified for the offence, albeit that the nature of the
offence is an important factor in determining whether it should be made. It is an ancillary
measure justifiable on the basis of future crime prevention. The appropriate sentence should
be determined first and the fact that deportation is being recommended should not be treated
as a mitigating factor. A court must give adequate reasons for making a recommendation. The
final decision rests with the Home Secretary. Because of the minimum age for eligibility, not
many reported cases have involved juveniles and reference will also be made below to
judgements concerning young adults.
‘Detriment to the community’criterion
As the Court of Appeal expressed it in R v Nazari [1980] 1 W.L.R. 1366, in determining
whether to make a recommendation the court must consider:
. . . whether the accused’s continued presence in the United Kingdom is to its detriment. This country has
no use for criminals of other nationalities, particularly if they have committed serious crimes or have long
criminal records . . . The more serious the crime and the longer the record, the more obvious it is that
there should be an order recommending deportation.
An isolated offence, even of a relatively serious nature, may not suggest potential detriment if
the offender remains in this jurisdiction, particularly where the offender is of previous good
character. Among cases where the test was not found to be satisfied: R v Ariquat [1981] 3 Cr.
App. R.(S.) 83, involving indecent assault by a man aged 19 who had had consensual sexual
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