The Early Removal Scheme

The Early Removal Scheme (‘ERS’) allows for the removal or deportation of “foreign national offenders” earlier than when they might normally be eligible for release after serving a part of their custodial sentence.

Section 47 of the Nationality and Borders Act 2022 (‘NABA 2022’) amended section 260 of the Criminal Justice Act 2003 so that people serving a custodial sentence without British Citizenship can be removed 12 months before the earliest release point of their sentence. This was later extended to a period of 18 months before the earliest release point (this change came into affect 16th January 2024).

However, the ERS window is proportionately shorter depending on the length of sentence. This is because - by law - at least one half of the custodial period of the sentence should be served before an individual can be removed. For example, where an individual receives a sentence of four years, the custodial part of the sentence will be 2 years of which they would need to serve half (12 months) before being eligible for early removal. The earliest they could be removed therefore is 12 months before the end of their custodial sentence. The prison will be responsible for calculating the ERS eligibility date and notifying immigration enforcement. The Foreign National Offender Returns Command (FNORC) department of the Home Office will then decide on when the individual can be removed or deported and will notify the prison accordingly.

Section 47 of NABA 2022 also enables “foreign nationals” recalled to prison to be eligible for the ERS after the eligibility date has passed. Section 47 further introduces a “stop the clock” provision which means that - should someone return to the UK after being released under the ERS, they would be returned to prison to serve the remainder of the custodial part of their sentence.

Details of the relevant parts of the legislation governing ERS are available at annex H of the Prison Service instruction (PSI) 4/2013. The Home Office also has published guidance on the ERS [5]. The Guidance explains that certain “foreign nationals” are not eligible for the ERS such as those who are serving indeterminate sentences and those serving sentences for terrorism offences and subject to certain release provisions. It also states reasons why early release might be refused. For example, if there are serious concerns for public safety or there is evidence of intentions to commit further crimes - where a crime includes plans to come back to the UK without permission.

Future Watch

The Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2025 was laid before Parliament on 25 June 2025. If approved, it will come into force on 23 September 2025. This will mean that people can now be removed four years before the end of their custodial sentence provided they have served 30% of their sentence. This means that the pre-removal custodial period is now the later date of a) 30% of the custodial sentence or b) 4 years before the end of the sentence.

The government has since announced they plan to go even further and introduce legislation so that people can face immediate deportation after sentencing.

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1. The Early Removal Scheme (Version 9.0) (9 December 2022) available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1123959/The_Early_Removal_Scheme__ERS_.pdf.