Foreign national prisoners
· Who faces automatic deportation?
· What is the Early Removal Scheme?
When does automatic deportation apply?
The UK has legal authority to deport any foreign national who is sentenced to 12 months or more in prison automatically, under the UK Borders Act 2007, unless a statutory exception applies, such as a human rights claim, age at conviction, or ongoing extradition. As of 22 March 2026, the legislation has been amended by the Sentencing Act 2026, to include any foreign national who receives a suspended sentence of 12 months or more for automatic deportation.
The Sentencing Act 2026 sets out the removal of the minimum custodial period for the Early Removal Scheme; this means that someone who is eligible could be removed for the purposes of immediate deportation any time after sentence. However, this law has not yet come into force.
What is the Early Removal Scheme?
The Early Removal Scheme, or ERS, allows some foreign national prisoners to be removed from the UK before they would normally be released from prison. The prison and the Home Office must both be involved in the process.
Who will be considered?
ERS applies to foreign national prisoners serving a fixed length (or “determinate”) sentence, such as a fixed prison term (standard determinate sentence), a fixed prison term with an additional licence period after release (extended determinate sentence), or some youth and historic sentence types. If you are eligible for ERS, the prison management will consider it. It is not up to you to apply, or agree to it.
Who will not be considered?
You cannot be removed under ERS if you are serving a life sentence or an indeterminate sentence like imprisonment for public protection. You are also excluded if your sentence includes certain terrorism offences covered by section 247A of the Criminal Justice Act 2003.
How early can removal happen?
Removal can happen up to 4 years before you would normally be released, but only after you have served at least 30% of the required custodial period. This earliest possible date is called the ERS Eligibility Date, or “ERSED”. This is the first day you can be removed under ERS. You cannot be removed before that date, even if you are going to an Immigration Removal Centre first.
What happens if I am on licence and recalled?
If you were released on licence in the UK and later recalled to custody, you can still be removed under ERS while serving the recall period. This can happen unless there is a reason to refuse removal, such as new criminal proceedings.
Who decides?
The governor of the prison, or a manager they delegate to, usually decides whether to authorise early removal. In rare cases where there is strong public interest, the decision may go to the Chief Executive of His Majesty’s Prison & Probation Service.
Why might removal be refused?
There are many reasons why removal can be refused, for example, if:
- There are still criminal charges or investigations in progress against you
- You need to serve a further “consecutive” prison term after the first one, for example for not paying fines or confiscation orders or breaking the rules of your supervision after release.
- You are serving a sentence for certain terrorism offences
- There are concerns that you may be a threat to public safety
If removal is not authorised does that mean I will definitely not be deported?
No. If you are liable for removal, but an early removal under ERS is not authorised, it does not mean you can no longer be deported. You may still be removed later, after the relevant part of your sentence has been served, or you may be detained under immigration powers.
What about parole?
If you are also in the parole process, that process continues normally. ERS is considered alongside parole so that, if removal fails or you are later found not liable for removal, you can still be reviewed for release in the normal way.
Do Irish nationals qualify?
Usually not. Irish nationals are only considered for deportation in exceptional circumstances, so they will normally not be eligible for ERS unless the Home Office confirms otherwise.
What do I need to remember?
ERS is not automatic release; it is early removal from prison for people the Home Office says can be deported. Whether it happens depends on your sentence type, your earliest possible release date, whether there are any legal or public safety reasons for refusing early removal, and whether a removal can be arranged in time.
Sources:
https://assets.publishing.service.gov.uk/media/69c6b3c543217762153609fa/psi_04-2013_Revised_March_2026_Early_Removal_Scheme_clean_version_-_FINAL.pdf
https://www.gov.uk/government/news/foreign-criminals-excluded-from-uk-under-strict-new-rules
Kathryn is a paralegal in our Crime Department. https://uk.linkedin.com/in/kathryn-maintzer-ab90763
Contact Lewis Nedas Law on our enquiries page or by telephone 020 7387 2032.