The law applicable to England and Wales permits police to issue a conditional caution to foreign nationals who have no leave to remain in the UK (e.g. overstayers/illegal entrants). This means that the police can choose to offer a conditional caution in relation to less serious offences instead of pursuing prosecution. Agreeing to a conditional caution does involve accepting guilt in relation to the offence.
Significantly, fresh proposals have been made by the government to extend police powers further so that this provision will also apply when dealing with foreign nationals who have limited leave to remain. The proposals have been introduced in the form of a Bill. If the Bill is passed, the proposals will become law.
On the face of it, accepting a conditional caution instead of a prosecution may not sound so bad. However, there is a significant catch. If the individual accepts the caution, they are also agreeing to depart the UK and not return for a stated period. Moreover, the law expressly states that the expiry of that stated period does not give any right to the offender to return to the UK. So, even if the offender adheres to the conditions by departing the UK and remaining outside of the UK for the specified period, they may not be permitted to return in the future.
If the proposal becomes law, it will have a far-reaching impact. It poses a risk to lawfully present foreign nationals for minor offences.
If the individual does not depart the UK in line with the conditions, they can be arrested and criminal proceedings raised. If convicted of a criminal offence, their current leave to remain could be cancelled. The risk of refusal for extending their leave to remain also increases, depending on their visa route and criminal sentence.
There are various potential pitfalls with the issuing of such conditional cautions by police.
Foreign nationals may not have sufficient fluency in English, which might result in individuals agreeing to a conditional caution without fully understanding the present or future consequences. An individual can request an interpreter when dealing with the police before agreeing to any conditions.
The purpose of these new powers is described as “bringing about the departure of the relevant foreign offender from the United Kingdom”. There is concern that foreign nationals will be disproportionately targeted by police.
Ultimately, it is important to bear in mind that proceeding with a criminal case may not result in a criminal conviction. Ideally, foreign nationals offered conditional caution should take advice from both a criminal lawyer and an immigration lawyer before accepting the conditions in order to get a better understanding of the potential effect on their specific circumstances.
We are waiting to see whether this new law will be implemented.
At Drummond Miller we have a wealth of knowledge in immigration matters. If you would like advice or assistance please do contact us to arrange a consultation.
Take the next step
- Call us on 0131 226 5151