The deportation of drug trafficker who committed an offence at the point of departure outside the Island

1240/5(3601)

WRITTEN QUESTION TO THE MINISTER FOR HOME AFFAIRS BY DEPUTY S.S.P.A. POWER OF ST BRELADE

ANSWER TO BE TABLED ON TUESDAY 4th DECEMBER 2007

Question

1. Following the recent Criminal Justice policy debate, will the Minister clarify formemberswhether a drugs offenderor drug trafficker, having been arrestedon arrival in Jersey and sentenced to lengthy custodial sentence in Jersey, is alsodeemedtohavecommittedan offence at the airport orport outside the Island that the heorshedeparted from?
2. Would the Minister inform memberswhy any such drug trafficker/offender cannot bedeported back to that departing airport or port before the end of any sentenceimposed in Jerseyand then banned from entering Jersey again for that undischarged portion of his orhersentence?

Answer

1. If a personimports controlled drugs into Jersey, they have committed one, or probably more than one, offence inthe Island. As they would have exported the drugs from another jurisdiction they would, probably also have committedoneor more than one offence in the other jurisdiction.
2. There are a number of points raised in part (b)of the question which I will deal with in turn.

Deportation of foreign nationals

Persons who are not British nationals and who are convicted for serious offences can be, and quite often are, recommended by the courts for deportation at the  end of  their sentences. The Lieutenant Governor is responsible for ordering the deportations and he will usually follow the court's recommendation though he is not obliged to do so. This is provided for under the Immigration Act 1971, as extended to Jersey.

Deportation before the end of the sentence

Persons recommended by the courts for deportation can be deported before the end of their sentence where arrangements  are  made  for  them  to  serve  part  of  their  sentence  in  the  United  Kingdom.  In  these circumstances the Lieutenant Governor will order the deportation immediately prior to the persons removal from the Island.

Although Jersey does not yet have a repatriation of offenders law, the United Kingdom Prison Services treat us as if we did in relation to prisoners from the UK. This means that if a prisoner from the UK (principally England and Wales) requests to transfer to a prison in that jurisdiction and if they can provide supporting evidence of a link and confirmation that they would receive visits from close family if they were transferred then the Prison Service of England and Wales will accept them at zero cost.

We also have an agreement that England and Wales will take any of our prisoners, even if they do not wish to be transferred. This option will incur significant cost to Jersey.

Deportation of British Nationals

British Nationals cannot be deported under Immigration legislation, and there is no other legislation that allows any person, including British nationals, to be forcibly removed from the Island and banned from returning.

Sending persons back for prosecution

The answer to this is given in section 9.41 of the CJP which succinctly explains the position.

".. the legal position appears to be that there is no existing legal power for the States of Jersey Police or Customs and Immigration to return suspects to their point of departure. Furthermore, to create such a power might cause legal difficulties with the Common Travel Area (CTA) concept. Since most drug importations originate from the U.K., it is doubtful whether any controls that might be possible would be effective. British nationals arriving from and returning to the U.K. could subsequently arrive from abroad (i.e. outside the CTA) but could not be returned abroad. It could also be argued that law enforcement agencies have a duty to detect and prosecute crime where it occurs. Returning suspects to their point of departure goes against this principle  and  could  cause  political  difficulties  with  neighbouring  jurisdictions.  The  international  legal

position in which Jersey exists prohibits[1] –

the  introduction  of  immigration  or  border  controls  in  relation  to  U.K.,  EEA  and  certain Commonwealth citizens;

taking measures which would amount to control over the rights of such citizens to come and live in the Island;

the Island from treating U.K. citizens differently from citizens of other EU states and EEA citizens – in relation to their rights to establish themselves in the Island, and;

taking actions which might not be consistent with the U.K. Immigration Act as extended to Jersey, Article 4 of Protocol 3 and European Court judgments relating thereto."

[1]

P.25/2005, Migration: Monitoring and Regulation, paragraph 3(c).