* If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons except where specified
Senior Community Managers
Victim Liaison Officers and Victim Unit Managers
Staff in prison establishments dealing with release on licence
Provide a summary of the policy aim and the reason for its development/revision
This instruction provides all staff with an explanation of the processes for permanent transfer or resettlement outside of England and Wales of offenders on licence. It also contains key contact points in the other jurisdictions within the UK and Islands and the updated transfer order templates.
Summary of position and particular considerations with Northern Ireland
Summary of position and particular considerations with the Isle of Man
Summary of position and particular considerations with Jersey
Summary of position and particular considerations with Guernsey (including Alderney, Herm and Sark)
Transfer Order template for unrestricted transfers
Prison Custody Office staff
Transfer Order template for restricted transfers
Transfer Order template for conversion of restricted transfer to unrestricted
Transfer Order template for the return of an offender to England and Wales
Equality Impact Assessment
1. Executive summary Background 1.1 The aims of supervision in the community following release from custody are to protect the public, to prevent re offending and to aid the rehabilitation of the offender. Allowing offenders on licence to transfer to other United Kingdom and Islands jurisdictions (which for these purposes include England, Wales, Scotland, Northern Ireland, Isle of Man, Jersey and the Bailiwick of Guernsey – including Alderney, Herm and Sark) or to permanently resettle abroad, i.e. outside of the UK and Islands, can assist in these aims and be of benefit both to the offender and the public in general. It can afford the offender access to the support of their close family and alleviates the hardships otherwise faced by family members seeking to maintain contact.
1.2 The National Offender Management Service has a duty of care to protect the public from those offenders under its supervision. There will be different considerations when an offender applies to transfer to another UK jurisdiction, compared with applying to resettle outside the UK. The Crime (Sentences) Act 1997 gives the authority for offenders to be transferred between UK and Island jurisdictions, which enable the licence to be enforced following a transfer. However, a licence imposed on an offender by England and Wales is not enforceable outside of the UK and Islands, and therefore an offender would not be under supervision by the local authorities if they were to transfer abroad whilst on licence.
1.3 The period of post-release supervision on licence forms an integral part of the sentence imposed by the court. To ensure that offenders remain subject to such supervision, permanent resettlement outside England and Wales must be permitted only where it meets the appropriate criteria. The Criminal Justice (Sentencing) (Licence Conditions) Order 2005 describes the relevant standard condition of a post-release licence as: “Not travel outside the United Kingdom, the Channel Islands or the Isle of Man without the prior permission of the responsible officer; except where he is deported or removed from the United Kingdom in accordance with the Immigration Act 1971 or the Immigration and Asylum Act 1999”. A derivative of this wording appears on each release licence. Although it does not extend to preventing the offender from travelling to another jurisdiction inside the UK and Islands, the condition “(P)ermanently to reside at an address approved by your supervising officer and notify him/her in advance of any proposed change to address or any proposed stay (even for one night) away from that approved address”, requires that a supervising officer must approve any change in residency within those areas. Desired outcomes 1.4 This Instruction has been issued to ensure that sufficient advice has been given to enable staff to accurately access applications from offenders who wish to be relocated outside of England and Wales on a permanent basis, and ensure that staff are aware of:
the difference in processes and considerations for transfer between the jurisdictions of the UK and Islands, and resettlement outside of them;
where responsibilities for actions lie within those processes;
the relevant contact points for other jurisdictions within the UK and Islands and
the appropriate transfer order templates and the need to complete them in every case transferred between England and Wales and another jurisdiction.
Application 1.5 Section 2 is predominantly for Probation Trusts as it relates to the resettlement of offenders outside the UK and Islands. The processes involved in this are primarily for the Probation Trust. However, Governors have authority to approve requests for transfer (see 2.11), and licence variation prior to an offender’s resettlement abroad and information sharing regarding a specific case may sometimes be required, requiring prison staff involvement.
1.6 Sections 3 and 4 both deal with transfers between jurisdictions, during the licence period, and, as such, relate only to Probation Trusts. Section 3 relates to outgoing transfers from England and Wales and section 4 referring to incoming transfers.
1.7 Prison staff involvement in the post-release transfer processes is limited to acting as a representative of the Secretary of State in order to review applications and sign transfer orders. Prison staff should also be aware of the requirement for Probation to lead on any requests for transfer following release and that prison staff should not arrange them directly with another jurisdiction/country. The actions for establishment staff are listed in 3.18 and 3.19, along with the templates at Annexes G, H, I and J.
1.8 PSO 6000 Chapter 13 “Transfer of Prisoners and Post Release Supervision Between United Kingdom Jurisdictions and the Islands – Parole and Supervision” should continue to be used for inter-jurisdictional transfers of serving prisoners until it is cancelled by a further instruction.
Mandatory actions 1.9 Contract Managers in Probation Trusts must ensure that probation staff are aware of, and comply with, the mandatory requirements which are summarised below:
That the appropriate criteria are considered when an offender applies to be transferred to another UK jurisdiction or overseas.
That the correct authority approves an offender’s request to travel under either scheme.
That for approved inter-jurisdictional transfers, a request is made of the Offender Management Unit at the releasing establishment to produce a transfer order for the offender.
1.10 Governors must ensure that all relevant staff are aware of and comply with the mandatory requirements which are summarised below:
To ensure that transfers to be conducted upon the release of an offender are arranged by the relevant Probation Trust, which may include seconded probation staff within an establishment, and not by Prison staff. Governors of Young Offender Institutions should ensure that arrangements for those under 18 are made by the relevant Youth Offending Team, not the relevant Probation Trust.
To review applications for resettlement abroad as a representative of the Secretary of State.
To produce transfer orders as are required from the templates supplied in this instruction, or on PNOMIS should they become available.
Resource Impact 1.11 The processes are primarily unchanged since their introduction in 1997 and so should not have an impact on resources other than the potential increase in applications as due to the increased availability of the policy on EPIC/Quantum following the publication of this instruction.
Director of National Operational Services, NOMS 2. Resettlement from England and Wales to a country outside of the UK and Islands 2.1 A licence imposed on an offender by England and Wales is not enforceable outside of the UK and Islands. Therefore, when considering any application from an offender to resettle elsewhere, it must be taken into account that, if an offender resettles in another country (including the Republic of Ireland, and any British Overseas Territories such as Gibraltar or Bermuda), the conditions on the licence will not be enforced. 2.2 The policy on resettlement abroad must not be seen as a replacement for the deportation process for foreign national offenders. It is expected that the offenders affected by this policy will be limited to foreign nationals who do not meet the threshold for deportation and British nationals (including those who hold dual nationalities) who normally reside outside of the UK and Islands.
2.3 An offender is required to spend a suitable period of time in the community in the UK and Islands before they can be considered for resettlement overseas. This is to allow enough time to have passed in order to assess the offender’s risk of reoffending and compliance with licence requirements in the community. However, in exceptional circumstances it may be suitable to allow an offender to resettle overseas directly from custody upon their release into the community; in general, this approach should be limited to those offenders who have been approved for early release on compassionate grounds, or where the Parole Board have approved this as part of the offender’s resettlement plan. It may also be applicable where an offender has no ties to the United Kingdom and where resettlement abroad immediately upon release to return to their home country would reduce the risk of reoffending or serious harm to the public.
2.4 In the case of any immediate resettlement upon release, the offender would be expected to report on a single occasion to the supervising Probation Trust so that the licence can be explained to them by their Offender Manager which would include an explanation of the re-imposition of the licence should they return to the UK and Islands following resettlement overseas. In the case of an offender who is of no fixed abode in the UK, this would be the Probation Trust in which the committing court is located.
Considerations for resettlement outside the UK and Islands 2.5 If an offender indicates a desire to resettle permanently outside the UK and Islands, the responsible officer must firstly consider:
Does the offender have close family or residential ties in the place he wishes to resettle, including, but not limited to, any compassionate reasons?
Is the offender’s index offence connected or potentially connected with the country they wish to resettle in, or is generally connected with overseas activities? (e.g. fraud involving companies set up outside of the United Kingdom; sexual offences against children and wishes to travel to a country known for child sexual exploitation; people trafficking; extremism with potential or actual international links).
If the answer to criterion 1 is ‘no’, or criterion 2 is ‘yes’, then the application should be refused. Should the application still remain viable, then the responsible officer must consider:
Would the protection of the public (including victims), reduction in the risk of reoffending and rehabilitation of the offender be undermined by such resettlement?
If the answer to criterion 3 is ‘yes’, then the application should be refused. 2.6 Criterion #3 must be carefully considered as, for example, it would not be appropriate to allow an offender who poses a high risk of violent and/or sexual re-offending to resettle outside the UK and Islands where they would be unsupervised, as it would undermine the protection of the public. 2.7 Criterion #1 allows for resettlement outside the UK and Islands to take place on compassionate grounds as part of the Early Release on Compassionate Grounds scheme (ERCG). For further details of that scheme see PI 06/2010 for indeterminate offenders or PSO 6000 Chapter 12 for determinate offenders.
2.8 If the Offender Manager is concerned that the proposed move is likely to increase the offender’s risk of serious harm, the Offender Manager must review the proposal with their line manager at the earliest opportunity. If/when a decision is reached not to approve the proposed move the offender must be notified immediately. The decision, the reasons for it and the offender’s response to it must be recorded on the case record. 2.9 Where an offender is subject to a Foreign Travel Order (FTO) preventing them from travelling overseas, there must be consideration of the reason(s) why this was implemented. If it is decided that the reasons for travel outweigh the requirements of the FTO, then it will need to be varied by court order to allow for the offender to travel aboard. If the court does not agree to modifying or cancelling the FTO, then the offender should be informed that permission to resettle abroad has been turned down due to the FTO remaining in place. Who may approve resettlement requests? 2.10 Resettlement outside of the United Kingdom and Islands for any offender on licence under Probation supervision must be authorised in line with this guidance by the Trust’s Chief Executive (or delegated authority thereof). Once granted, this must then be confirmed by the Secretary of State. 2.11 The Secretary of State has the authority to grant applications to allow an offender on licence to resettle outside of the United Kingdom and Islands. This is by approving a request to permanently travel under the relevant standard licence condition as described in 1.3. In practice, approval of such requests must be carried out by either:
in the case of determinate sentence prisoners, the Governor of the establishment from which the offender was released; or
in the case of indeterminate sentence prisoners (lifers/IPPs), the Public Protection Casework Section (PPCS) within NOMS.