Manifesto of the Campaign against Double Punishment
(Sex and Drugs and Immigration Control)
First published in 1992 by The Campaign Against Double Punishment
It is supposed to be a fundamental principle of the criminal law that a person cannot be punished twice for the same offence. However this does not apply to black people. This is because many black people found guilty of a crime are at risk of deportation in addition to any other sentence. Apart from certain Commonwealth and Irish citizens the only people immune from expulsion are British Citizens . However since the 1981 Nationality Act it has become increasingly hard to acquire such citizenship.
Deportation of criminal offenders can take place in two ways. Firstly, it can be recommended by a court following conviction . Secondly, even where the court makes no recommendation, the Home Office can subsequently intervene and serve a deportation notice on the grounds that the prisoner's presence in the UK is not Òconducive to the public goodÓ .
Deportation following conviction can occur irrespective of how long a person has lived in the UK. It can be irrespective of their family ties in this country - which can have two consequences. Either families are split up. Or alternatively, in order to keep together, partners and children will also uproot themselves and go and live abroad often in countries they may have never even visited previously. This amounts to enforced deportation of entire families.
Racism of immigration controls
Double punishment is not simply unjust. It is also racist. It is racist because it primarily affects immigrants, migrants and refugees from the third world and their families.
This is because all immigration restrictions are racist. The only reason they exist is to keep out and control black people. This is why children are denied entry to join parents, husbands to join wives and refugees to claim asylum. And it is why those who do manage to get to the UK can later be removed. In 1989 there were 678 court recommendations to deport and 3,214 Home Office notices of deportations - of which 112 were on grounds of public good. To be added to this are the 1,820 people removed as being allegedly illegal entrants . All this means that every week about 100 people are threatened by expulsion. Hidden from these figures are the families of those threatened. Also hidden are the countless numbers who leave the UK in fear without waiting for expulsion proceedings and therefore losing what limited opportunities there are to challenge such proceedings.
It is not a coincidence that these laws affect mainly black people. Politically, immigration laws are inevitably racist. It is impossible to have non-racist immigration laws. Controls are always aimed at particular groups of people. The very first immigration restrictions were contained in the 1905 Aliens Act. This was designed to keep out Jews fleeing anti-Semitism in Russia and Eastern Europe. Nowadays supporters of controls argue that immigration laws are somehow 'natural' or 'reasonable'. However a century ago there were no such controls. It required a mass political movement against Jewish immigrants to legitimise control through the 1905 Act. Controls were later used to keep out Jews fleeing Nazism. Since the Commonwealth Immigrants Act of 1962 immigration laws have been aimed at keeping out black people.
Immigration laws criminalise black people
The effect of immigration laws is to criminalise all black people. It does not matter if they have committed any criminal offence or not. The Immigration Act 1971 authorises detention and imprisonment where there has been no offence, no charge, no prosecution, no court intervention . For example, people refused entry, such as asylum-seekers, can be put in custody. So can anyone against whom the Home Office serves a notice to deport for 'overstaying' or working in breach of the conditions of their entry. Likewise alleged illegal entrants can simply be apprehended and imprisoned. Custody takes place either within prisons or in specially designated immigration detention centres. The latter include Harmondsworth and detention buildings in airports, such as the Beehive in Gatwick and Queens Building at Heathrow. Since 1970 these have been managed by private security organisations. Presently Group 4 has the contract . The detention of black immigration prisoners is providing a model for the future privatisation of the prison service.
Immigration controls criminalise black people in other ways. For example the proposed new Asylum Bill will make compulsory the finger-printing of all asylum-seekers. In future refugees will be treated as offenders.
Criminalisation also takes place through the very language of controls. Under immigration law immigrants, migrants and refugees can be defined as being in the UK 'illegally' or 'unlawfully'. In this way black people are defined as non-persons and as being outside the law - as being the modern equivalent of the mediaeval outlaw. Immigration Officers regularly describe third word people as 'illegals' - as having no identity other than as being devoid of status in the UK. All these definitions, all these ways of criminalising black people, are highly political in that immigration laws are not a static given fact but are constantly being redefined, always to the detriment of black people.
There is one instance where this criminalisation takes place for openly political reasons. The Immigration Act 1971 gives the Home Secretary power to deport on conducive to public good grounds 'for reasons of a political nature'. Black people can be expelled without being charged with any offence simply because of their political activity; or political allegiances,or assumed political allegiances. The most recent instance of this was the detention and deportation of some Iraqis and Palestinians after the United States' invasion of Iraq. Their very nationality had been turned into a crime. Their being black was adjudged a political crime .
The criminalisation of those who have committed no criminal offence makes, central to the ideology of immigration control the position of those who have been found guilty of such an offence. Black people convicted of a crime are the ultimate scapegoats and victims of immigration law. They are used to justify the idea that controls are necessary. Necessary to keep out the criminal and the so-called 'deviant' which by definition includes everyone from the third world.
Double punishment - that is deportation in addition to any other punishment - is right at the heart of the racism of immigration controls. It should also be right at the heart of opposition to controls. However the reality is that many people who would normally oppose deportation in individual cases think that it is ÒreasonableÓ and ÒalrightÓ to support the expulsion of convicted criminals. But it is neither reasonable nor alright. Imagine the outcry if deportation applied to British citizens and thousands of such citizens were deported every year. Why should a criminal penalty relate to a person's immigration status - unless it is thought that a penalty has to be paid for being black?
The political history of double punishment
The fact that criminalisation and double punishment are so important to immigration control can be seen historically. Under the Aliens Act 1905 the only grounds for deportation were where there had been a court recommendation following a criminal conviction - or where a court had certified that an alien was claiming Òparochial reliefÓ. Being on the dole and being a criminal have long been seen as identical in immigration law. So, today, having 'recourse to public funds' can lead to deportation in some cases.
The numbers of people deported under the 1905 Act can be seen in the 1908 annual report of the government inspector appointed to oversee the Act. In that year there were 319 expulsion orders made of which 40 were for parochial relief and the rest followed a criminal conviction .
Deportations and 'deviancy'
Most of those deported under the Aliens Act 1905 were Jewish. Moreover many of these were deported following offences relating to prostitution. The Jewish Chronicle of 30 April 1909 reported a meeting in Cardiff organised against prostitute women where it was stated that:
Owing to the leniency of the Cardiff stipendary magistrate a few years ago, two Jewesses out of thirty seven who had been before him were allowed to remain in Cardiff, the other thirty five having been deported. These two Jewesses had been the means of bringing sixty other Jewesses to Cardiff who were on the streets of the city today and alien men were living on the shame of these poor creatures.
Immigration laws are not based just on the notion that those who are to be excluded (that is the entire third world) are simply criminals. Rather, immigration laws construct and reinforce the most racist images of the alien as deviant. One of the myths most frequently used against Jews to justify immigration controls was the myth of Jewish sexual promiscuity - Jewish women being defined as prostitutes and Jewish men as pimps. W H Wilkins, an active campaigner for controls, wrote in 1892 in his book The Alien Invasion that:
Many of the immigrants are young women, Jewesses of considerable personal attraction. Mensharks and female harpies are on the look out for them as soon as they disembark.
In a very similar way in the 1950s the myth of a supposed sexual deviancy by black people was used as a way of justifying control. The 1962 Commonwealth Immigrants Act was very much a response and concession to racist attacks in the summer of 1958 in Notting Hill and Nottingham. The Times of 27 August 1958 sought to explain the violence against black people as being based on an alleged Òmisbehaviour, especially sexualÓ and the fact that Òthere is also sexual jealously - the sight of coloured men walking along with white womenÓ. The Guardian of 9 September 1958 ran an article reinforcing the stereotype of the black man as pimp. It described the sighting of a woman of Òmixed-marriageÓ in Notting Hill and that:
A coloured man called for her in a large black Humber and I followed in my own car. They swung left at Holland Park and ten minutes later she was put out on her ÒpitchÓ on the pavement in Bayswater Road.
When the government was introducing the present 1981 Nationality Act one of its Ministers, Timothy Raison, announced that British Citizenship would, not be granted to anyone involved in Òscandalous sexual misbehaviourÓ .
Sex and drugs and immigration control
These images of ÒalienÓ sexuality were a very significant force throughout this century in the enactment, development and enforcement of immigration controls. This was because they brought together both English racism and English sexual prurience - a powerful combination.
However nowadays the dominant myth used to justify controls has switched from sex to drugs. For instance black people convicted of a drugs offence, especially of supplying or importing, are a very high risk group indeed - the high risk being double punishment and deportation. In 1988, of all deportation orders made following a court recommendation, 80 per cent (531) followed convictions for a drug offence. In the same year 55 per cent (58) of deportation orders made on conducive to public good grounds followed a drugs offence .
These figures have little, if anything, to do with the protection of the public. They have everything to do with the portrayal of all black people as supposedly degenerate and vice-ridden - and of drug ÒabuseÓ as being the result of third world supply and corrupting influence rather than of demand within the UK. If the issue really were one of protection then it would not only be foreign nationals who are singled out for longer prison sentences and deportation. However as the Court of Appeal said in R v Nazari , the leading legal judgment on deportation following a drugs offence, 'The United Kingdom has no use for criminals of other nationsÓ .
The existence of double punishment gives the police a vital role in the enforcement of immigration control and the criminalisation and monitoring of black people. This can be seen from the Home Office's own Circulars to Chief Constables.
Firstly, a court cannot make a recommendation to deport unless the accused has been given seven days warning in advance that he or she is liable to deportation and is served with the appropriate form. The form presently has the Home Office reference number IM3. Circular 38/1988 states that Òresponsibility for serving Form IM3 rests with the policeÓ. A recommendation is part of a sentence on conviction. The giving of the responsibility to the police to decide whether or not to serve the IM3 offends another basic principle of criminal law - namely that neither the prosecution nor the police in particular should have any influence in sentence after the verdict. However the Home Office is actively encouraging the police to be pressing courts to make recommendations to deport. Circular 68/1990 states:
Experience has shown that a court recommendation provides the most efficient and effective means of securing the deportation of those subject to immigration control who commit criminal offences and forces should bear this firmly in mind when dealing with offenders subject to immigration control.
Secondly, the Home Office has given the police the responsibility to report on, spy on, black people even in cases where there has been no court recommendation. Circular 681/1990 asks police forces to report to the Immigration and Nationality Department of the Home Office on other convictions, particularly those involving 'drugs or violence against the person'. This is to allow the Home Office to make deportation orders on conducive to public good grounds. One of the most demoralising aspects of double punishment is that black prisoners are often taken completely by surprise when the Home Office decides in mid-sentence to deport .
Thirdly, because only non-British black people can be deported then the police's role in securing deportations means they inevitably inquire into an accused person's immigration and nationality status. They act as agents of the Immigration Service and liaise with that Service. Circular 1041/1981 instructs the police to Òmake further inquiriesÓ where they doubt if someone is a British Citizen and in particular where they Òbelieve that a false place of birth has been givenÓ.
Imprisonment and home leave
Double punishment affects the rights and liberties of black people even before any deportation takes place. Two significant issues for all prisoners are the chances of temporary home leave and of parole. However for prisoners in the course of a custodial court sentence there is little chance of either where there exists a threat of deportation.
When reaching their parole eligibility date most prisoners are eligible to apply to the prison Governor for home leave. The Home Office though has issued instructions to Governors which makes this eligibility useless for foreign nationals. A Home Office Amendment to Circular Instruction 9/1988 (issued February 1991) states:
Particular care should be exercised in releasing prisoners against whom a deportation order has been signed or who are approaching the end of their sentence. Before releasing any prisoner liable to deportation, Governors should take account of the stage deportation proceedings have reached (for example whether a deportation order has been signed or is about to be signed). They should bear in mind that in some cases the likelihood of deportation at the end of the sentence may provide a powerful disincentive to returning from the period of release.
It is simply unjust that a possible deportation should prejudice the chances of home leave. Riots would ensue if all prisoners were to be deprived of the possibility of home leave. When does any prisoner have anything except a Òpowerful disincentiveÓ to return to prison? The issue here is one of black prisoners being singled out and discriminated against because of their immigration status.
Likewise the possibility of some future deportation is often used as a reason to refuse parole itself. The Home Office denies this but it happens in practice. It is also completely unjust. A person's ÒsuitabilityÓ to be released back into the community cannot be determined by the possibility of some future expulsion from the UK.
Conversely some parole boards would apparently prefer to grant parole not as a way of granting freedom but as a way of helping the Home Office speed up the expulsion process. This itself is of dubious legality - as expulsion makes compliance with parole conditions impossible. Moreover at least one Tory MP has objected to such a practice on the grounds that it is too lenient. Chris Butler MP said in the House of Commons (9 June 1989):
Many drug couriers and dealers imprisoned in Britain are foreign. Local Review Committees are tempted to deport them before they complete their sentence. The motivation is clear - to get rid of the scum and lessen the burden on the British taxpayer ... A premature return to their country of origin would give the message that Britain is a soft touch .
The Criminal Justice Act
The 1991 Criminal Justice Act will actually legalise more rapid expulsions through the new parole or 'licence' system. This will enable the early release of prisoners subject, usually, to conditions - in particular to the condition of compulsory supervision by a probation officer. The scheme will come into operation in October 1992. Under the new system all prisoners serving a sentence of less than twelve months must be released unconditionally after half the sentence . A prisoner serving between one and four years must be released after half sentence but subject to licence conditions . A prisoner serving four years or more (a 'long-term' prisoner) must be released on licence after two-thirds of the sentence . Also a long-term prisoner may after half sentence be released on licence by the Home Secretary if recommended by the parole board . All this seems beneficial for prisoners under threat of expulsion in that a lot of early release dates will be automatic and cannot be blocked by the parole board. Indeed section 46 of the Act allows the Home Secretary to release after half-sentence without even referral to the parole board those long-term prisoners Òliable to removal from the United KingdomÓ. Those liable to removal are defined as deportees, persons refused leave to enter or alleged illegal entrants. However there is a big sting in the tail in all of this for immigration prisoners. Early release will not mean release into the community. But release on to a plane. This is because section 46 also states that prisoners liable to removal from the UK will not be subject to licence conditions on their release . This allows the Home Secretary to expel someone without being responsible for a breach of licence conditions. In other words as far as black prisoners are concerned this whole scheme is simply a front for more rapid removals 20.
The trap for immigration prisoners
Prisoners threatened with expulsion are in a trap. On the one hand just like every prisoner they all want to get out of custody as quickly as possible. On the other hand most want to remain in this country and not be speedily removed. Of course a minority of such prisoners may genuinely want a quick return to their country of origin. The majority of black prisoners though are in a Òcatch 22Ó situation. At the moment the situation is that the more a prisoner challenges the removal process, through the law and through campaigning, then the longer he or she is likely to be kept in custody. In fact many prisoners are detained long after the completion of their sentence. This is done under Immigration Act 1971 powers and is done as a deterrent to stop expulsions being in any way contested. Many prisoners understandably opt not to resist deportation but to leave prison as quickly as possible even if this means having to leave the country. The new Criminal Justice Act is going to make this trap even worse for black prisoners by speeding up expulsion via early release whilst at the same time the Home Secretary will retain Immigration Act 1971 powers for continued detention on completion of the criminal sentence.
The Campaign Against Double Punishment
The Campaign Against Double Punishment has been set up to publicise and campaign against double punishment. We are against it. It offends all rules of natural justice and is a central feature of the racism of immigration controls. It is based on the premise that all black people are a corrupting and criminal force. It has nothing to do with concepts of the punishment fitting the crime. It has everything to do with punishment pandering to the basest prejudices of the British state and fitting up black people accordingly.
For that diminishing group of Commonwealth citizens who have retained the right of abode during their lifetime and so cannot be deported see the Immigration Act 1971 s 2 as amended by the British Nationality Act 1981 s 39(2). In addition those Commonwealth and Irish citizens ordinarily resident in the UK when the Immigration Act came into force (1 January 1973) are exempt from deportation if they were also ordinarily resident for five years prior to any conviction and recommendation by the court or prior to notice of deportation by the Home Office on conducive to public good grounds (Immigration Act 1971, s 71)
Immigration Act 1971, s 3(6)
Immigration Act 1971, s 3(5)(b)
Figures taken from the Home Office Statistical Bulletin, 27 September 1990
See the Immigration Act 1971, 2,3 Sch for powers of detention
See Dr Penny Green, Private Sector Involvement in the Immigration Detention Centres (The Howard League for Penal Reform)
Immigration Act 1971, s 15(3) takes away appeal entitlements in such cases. See R v Secretary of State ex p Cheblack (1991) 2 All
Jewish Chronicle 18 June 1909
HC Official Report (5th series) 19 March 1981, col 692
In correspondence from the Home Office to Keith Bradley, MP, on behalf of the Greater Manchester Immigration Aid Unit
1980 13 All ER
71 Cr App R 87
Previously responsibility was given to prison Governors to take the initiative and report to the Home Office those foreign nationals
they considered should be deported. Circular Instruction 231/1986
Quoted in Dr Penny Green, Drug Couriers (Howard League for Penal Reform). Amongst other important issues this pamphlet also
deals with the 'triple jeopardy' of Nigerian drug couriers. With the introduction of Decree 33, effective from 10 October 1990,
Nigerian couriers arrested and convicted abroad are now liable for immediate re-prosecution upon completion of their sentence
abroad and deportation to Nigeria
Criminal Justice Act 1991, ss 33 (1)(a), 33(5). Section 33(5) defines who is a 'short-term prisoner' - a person serving a sentence of
imprisonment for a term of less than four years and who is a 'long-term prisoner' - a person serving a sentence of imprisonment for a
term of four years or more
Criminal Justice Act 1991, s 33(1)(b)
Criminal Justice Act 1991, s 33(2)
Criminal Justice Act 1991, s 35(1)
Criminal Justice Act 1991, s 46(1). Section 46(3) states:
ÒA person is liable to removal from the United Kingdom for the purposes of this section if (a) he is liable to deportation under section
3(5) of the Immigration Act 1971 and has been notified of a decision to make a deportation order against him:
(a) he is liable to deportation under section 3(5) of the Immigration Act 1971 and has been notified of a decision to make a
deportation order against him;
(b) he is liable to deportation, under section 3(6) of that Act;
(c) he has been notified of a decision to refuse him leave to enter the United Kingdom; or
(d) he is an illegal entrant within the meaning of section 33(1) of that ActÓ
Criminal Justice Act 1991, s 46(2)
Under the present law, as found in s 60 of the Criminal Justice Act 1967, the Home Secretary does already have a general power on the recommendation of the parole board to grant parole without there being any condition and in particular without any condition as to probation supervision. According to a letter from the Prison Service Parole Unit to Greater Manchester Immigration Aid Unit of 30 December 1991 this power has been used in cases of 'prisoners who are subject of deportation orders' - and is not otherwise used. The Unit is endeavouring to obtain details and statistics on this. However s 46 of the Criminal Justice Act 1991 differs from the present law in that in future release on licence will not have to be considered by the parole board and also in that there is a definition of prisoners 'liable to removal from the United Kingdom'. In addition s 46 avoids the legally dubious situation under the existing law where a deportation order is made subsequent to a release subject to supervision conditions and therefore any actual removal is in breach of the conditions
Reprinted from Immigration and Nationality Law and Practice, vol.6 , no.3, 1992 (note that some of the circulars refered to have now been superceded by new documents but the situation as described remains generally in force)