Migration & Nationality

The UK criminal justice system is deployed as a tool for dominating and debasing the lives of people with insecure immigration status. As criminal justice lawyers, we see this play out not just in terms of the creation of new criminal offences, but also in more subtle procedures and practices. Commons is committed to highlighting these issues, putting forward informed solutions, and creating lasting change in the justice system.

Overturning the requirement to state nationality in Court

In 2017, a policy was passed into law in England and Wales as part of the “hostile environment” which required all defendants to state their nationality in open court at the start of their criminal proceedings. Failure to do so was a criminal offence carrying a possible 51-week prison sentence.

In May 2020, Commons published, ‘The State of Innocence’ a ground-breaking study into the policy’s impact based on primary research conducted in Magistrates’ and Crown Courts. We found that the ‘nationality requirement’ racialised UK courtrooms across the country. Defendants were frequently answering the question with their race or ethnicity such as “black British.” It also stoked fears that the information they gave would affect the outcome of their cases.

The policy was justified on the basis that it would facilitate the deportation of foreign national offenders but deportation of foreign offenders is only mandatory when a conviction results in a custodial sentence of a year or more.  The nationality data was collected and stored regardless of the outcome of the case.

As a result of our report, the Government reconsidered the legality and impact of the nationality requirement. In August 2020, criminal courts were ordered to stop asking defendants about their nationality until after they had been sentenced to imprisonment. In February 2021, the nationality requirement was formally removed from the Criminal Procedure Rules. Our research was funded by The Strategic Legal Fund for Vulnerable Young Migrants.

Collaboration with Migrants’ Law Project

Commons and the Migrants’ Law Project are working together on a three-year project, funded by the AB Charitable Trust, to better understand how to support vulnerable young people who may have complex needs and are subject to immigration control and who come into contact with the criminal justice system. As part of this, Commons is representing people who fall into this category in cases that are not normally afforded public funding.

The aims of the project are to:

  • Improve understanding of the interrelation between the criminal justice and immigration systems
  • Develop best practice among legal workers to enable improved support for this client group
  • Identify where additional funding and changes in practice from statutory agencies would support better outcomes with a view to policy change

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