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17 September 2018

Too many foreign national and trafficked women face inappropriate imprisonment

Vulnerable foreign national women in the criminal justice system, including trafficking victims, are facing inappropriate imprisonment and the threat of deportation at the expense of rehabilitation or support, according to a new report published today (17 September) by the Prison Reform Trust and Hibiscus Initiatives.

The report, Still No Way Out, found that foreign national women, many of whom are accused or convicted of non-violent offences and who have in many cases been trafficked or coerced into offending, are receiving inadequate legal representation, poor interpreting services and disproportionate punishment.

Its findings suggest that measures put in place to protect victims of trafficking and modern slavery are too often failing to prevent prosecution for offences committed as a consequence of exploitation by traffickers.

The report draws upon data from a number of sources, including evidence gathered by Hibiscus from its work with foreign national women in prison, published statistics, freedom of information requests, parliamentary questions, inspectorate reports and research studies.

A relentless focus in recent years by the Home Office and Ministry of Justice, driven by the government’s ‘hostile environment’ policy, to deport increasing numbers of foreign nationals in difficulties with the law has restricted the use of bail, proportionate alternatives to custody and access to rehabilitation and resettlement services.

‘Foreign national offender’ is a broad term encompassing those convicted of any offence without evidence of British nationality. Women classed as foreign nationals may have lived legally in the UK for many years, in some cases since childhood, and regard themselves as British. They may also have dependent children; yet their leave to remain may be revoked following a criminal conviction, so that they face possible removal or deportation to a country where they have no connection, leaving family and community behind.

Figures contained within the report show that more than half (53%) of foreign national women in prison supported by Hibiscus had problems relating to their immigration status. It recommends that foreign nationals with contested or uncertain immigration status should be guaranteed independent immigration advice and should not have to enter a plea on a criminal matter until legal advice has been provided.

The report also raises concerns about failures to identify and ensure the non-prosecution of victims of trafficking and modern slavery who have been compelled to commit offences, as required by law under section 45 of the Modern Slavery Act 2015.

Evidence from Hibiscus, confirmed in recent inspection reports and in discussion at a high-level roundtable held by PRT and Hibiscus in July 2018, suggests that despite police and prosecution guidance there is a disturbing failure to identify, protect and support victims of trafficking at an early stage and avoid prosecuting them for offences committed as a consequence of their exploitation by traffickers. Of the 585 foreign national women prisoners Hibiscus assisted between February 2013 to March 2017, 45 women were identified as victims or potential victims of trafficking, all of whom had disclosed information about their exploitation. This represents 8% of the total Hibiscus caseload.

Foreign national women are over represented in the criminal justice system, especially on remand. They account for around 8% of the general population in England and Wales, but over 12% of all women received into prison each year and nearly 19% of those remanded.

Figures compiled by Hibiscus, from the women they supported between 2013 and 2017, show that half were held in prison on remand; 49% of those given a custodial sentence were serving a year or less; and the most common offences for which the women were in prison were fraud (18%), theft (18%) and false document offences (10%)—all indicator offences for trafficking and coercion.

Foreign national women in prison receive little or no access to rehabilitative opportunities in prison and poor resettlement planning and support. Inspection reports highlight that support for foreign national women in prison, such as interpreting and immigration legal advice, varies considerably and that resettlement support is generally poor.

Prisons face significant challenges in meeting the needs of foreign national women and trafficked women in prison, due to a lack of information about prisoners before their arrival, the churn of women serving short sentences and a lack of resources to provide necessary support.

Official data and prison inspectorate reports show that access to open conditions, Release on Temporary Licence (ROTL) and Home Detention Curfew (HDC) remain very limited for foreign national women in prison. This is despite the fact that most have been convicted of non-violent, often minor, offences and many may not ultimately be deported. The overriding focus on their removal from the UK jeopardises fair treatment and rehabilitation.

Analysis of HM Inspectorate of Prisons surveys reveal that most foreign national women receive very poor levels of support to prepare them for release, and providers of ‘through the gate’ support are not explicitly required to address the distinct needs of foreign national women. Confusion over the respective responsibilities of prisons, the National Probation Service and Community Rehabilitation Companies has created additional difficulties for foreign national women, who are at increased risk of getting lost in the system.

Furthermore, the current limited availability of official data about the experiences of foreign national women in the criminal justice system and failure to monitor outcomes impede both understanding of their over representation in custody and progress to address this. The report recommends that the principle of ‘explain or reform’ adopted by central government, following the Lammy Review of racial bias in the criminal justice system, should be extended to include foreign national status.

Commenting, Katy Swaine Williams, Senior Project Officer at the Prison Reform Trust’s Transforming Lives programme to reduce women’s imprisonment said:

“Foreign national women remain largely hidden in our justice system, with the authorities focusing on their removal and not their rehabilitation. Our report reveals that very limited official information is recorded or analysed about the nature of these women’s offending and outcomes in terms of sentencing, reoffending and rehabilitation. Specialist support for foreign national women is scarce and criminal justice practitioners are often not equipped to ensure they understand the process and are fairly treated. Despite legislation to protect victims of trafficking, current processes are failing to identify vulnerable women and prevent their prosecution for offences they were compelled to commit.”

Commenting Adrienne Darragh, Chief Executive of Hibiscus Initiatives, said:

“This is an opportune time; we hope that this report, combined with the recently published Female Offender Strategy, confirmation from the Home Secretary of the move away from the ‘hostile environment’ and the commitment to implement David Lammy’s key recommendations will act as a catalyst in leading to positive changes in the experience of foreign national and trafficked women caught up in our criminal justice system.

“The government’s intention to imprison fewer women for non-violent crimes is very welcome. Acting on this report’s proposals will help ensure that vulnerable foreign national and trafficked women are not punished disproportionately and have equality of access to justice.”