Monday's announcement on the rights of EU citizens in the UK post-Brexit carried the headline grabbing statement that the Government will “apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK”. The Daily Mail took the bait, publishing a story entitled “We’ll Kick Out EU Killers”. The reality is, however, that following Brexit it may be more difficult to remove serious criminals than it is under the law as it is now. The law does currently provide for the removal of EU citizens convicted of criminal offences in the UK. Where offences have been committed abroad, it is only through our membership of the EU that the UK has access to information about those offences and the ability to extradite accused or convicted persons.

There are two ways in which EU citizens accused of or convicted of criminal offences may be removed from the UK:

  1. EU citizens in the UK convicted of committing offences in the UK are in fact subject to deportation already: the UK Borders Act 2007 requires the Secretary of State to make a deportation order in respect of a foreign criminal unless exceptions apply. Under the Act, a ‘foreign criminal’ is defined as someone who is not a British citizen and who has been sentenced to a period of imprisonment of at least 12 months, or who has committed a specified offence under the Nationality, Immigration and Asylum Act 2002. This means that, on conviction, EU citizens can already be deported.
  2. EU citizens accused of or convicted of an offence in another country may be subject to extradition, under the EAW scheme. There is no requirement for such offences to be serious, in fact, as has been well-publicised, extradition can take place for relatively trivial offences, such as theft of a chocolate bar or cycling while drunk.

It is right to say that current legal provisions mean that it is more difficult to deport EU citizens exercising their treaty rights in the UK who have been convicted and served a sentence abroad than non-EU nationals. Nevertheless, as a result of information sharing across the EU, the prospects of determining whether an EU citizen has previous convictions from abroad are much better. The UK has access to information about previous convictions through its membership of the EU, and in particular through Europol, the Schengen Information System (II) and ECRIS. Without this access, it will in fact be more difficult for the UK to determine who is, or is not a “serious or persistent” criminal. If the UK is not permitted to remain part of the EAW scheme, extradition of those accused or convicted of offences abroad is likely to become more difficult than it is now. Further detail is awaited, however, in practical terms, if the UK does wish to exclude EU citizens who are “serious or persistent” criminals, UK negotiators may find that major concessions will have to be made in order to retain access to the key EU crime and security information databases and agencies.

This blog originally appeared on the Britain in Europe website.