The Framework Decision also allows for the exchange of criminal records information for other purposes, such as immigration or employment vetting, where this is permissible under the national law of the state providing the information. Generally, personal data provided under the Framework Decision can only be used for the purposes for which it was sought. However, any personal data may also be used to prevent a serious and immediate threat to public security, without the need to obtain permission from the other European Union (EU) Member State.
When a foreign national is arrested in the UK, the police will request an overseas records check via the ACRO Criminal Records Office (ACRO). ACRO conducts such conviction checks with EU Member States and Non-EU Interpol Member Countries. The target country for the request is usually the individual’s country of nationality. It could also be to another country where they are known to have lived or travelled.
Where an overseas check reveals serious offending, ACRO will refer the case to Criminal Casework (CC) for consideration of deportation action. Most checks are carried out under the Framework Decision but ACRO also have bilateral arrangements with a number of non-EU countries and can make a request to those countries for an individual’s criminal conviction history via Interpol.
Once the referral is passed to the CC workflow team they must ensure the ACRO certificate request purpose states: ‘Request for administrative purpose immigration/deportation’, or the offences appear on the PNC. If this information is missing, the Casework Information Database (CID) should be noted to state that a non-disclosable ACRO certificate has been received and that no further action can be taken until a disclosable certificate is obtained (a new ACRO referral should be made for Immigration purposes and the non-disclosable certificate destroyed) It should be noted that under the Framework Decision, ACRO certificates requested by police for criminal proceedings and not clearly marked for administrative immigration/deportation purposes must not be used as the basis for a deportation decision.
Foreign national offender’s (FNO) whereabouts are unknown
Where the foreign national offender’s whereabouts are not known a National Border Targeting Centre (NBTC) check must be completed to establish whether the offender has left the UK recently. If the NBTC confirms the offender has left the UK, the case will be closed on Casework Information Database (CID) using the outcome ‘ACRO overseas conviction – left UK before deport action’. Where the offences are of the most serious nature consideration should be given, in consultation with senior case workers (SCWs), to excluding/obtaining an exclusion order.
FNO is still in the UK
If the NBTC check shows that the foreign national offender is likely to still be within the UK, an ICD.5079 must be completed and sent to the Police National Computer (PNC) Bureau to have a wanted/missing marker added to the PNC.
Detaining Foreign National Offenders (FNOs) with Overseas Convictions
Offenders with overseas convictions should only be detained where the overseas convictions can be disclosed for immigration purposes and the information is made available to the officers making the decision to detain. This means the overseas convictions are recorded clearly on the PNC or Immigration Enforcement hold an ACRO Certificate marked for Immigration/Deportation purposes. Once this is confirmed the usual detention processes should be followed.
Immigration Enforcement must not detain alleged offenders on the basis of non-disclosable information. EEA nationals will usually be detained using the powers contained within Immigration (European Economic Area) Regulations 2006 under regulation 24(1). Non-EEA nationals will be detained using the powers contained within paragraph 2, Schedule 3 of the Immigration Act 1971.
Deportation consideration
Deportation consideration will only begin once the FNO has been located. The FNO must be served with either a Stage 1 Liability to Deportation Notice (if an EEA national) or a Stage 1 Decision Notice (if a non EEA national). Where they are serving a prison sentence and there is sufficient time to do so, the offender shall be given 20 days to respond to the notice. Where they have been detained under immigration powers or it is decided to release, the offender will be given 10 days to respond to the Stage 1 notice.
Case owners should follow the consideration process set out in the Deporting non EEA Foreign Nationals guidance or in the case of EEA nationals, the EEA Foreign National Offender’s guidance. Where the offender is not detained and we have made a decision to deport, if the offender’s address is known and there is no in country right of appeal, the local Immigration, Compliance and Enforcement (ICE) team should be asked to detain the individual.
If you have been detained or being deported from the UK, email us the decision letter to info@icslegal.com or fax to 0207 112 8479. You can call our legal team on 0207 237 3388.
