Early Removal Scheme: Deported Before Release

If you are a foreign national serving a determinate sentence in England or Wales, and the Home Office has confirmed you are liable to removal, you can be removed from the UK up to four years before your normal release date, and you do not have to agree to it.

That is the Early Removal Scheme, or ERS. It is run under prison service policy and the Criminal Justice Act 2003, and it is separate from the question of whether a deportation order against you is lawful. Here is how it works in practice.

What the Early Removal Scheme is

ERS allows the prison service to remove a foreign national prisoner from the UK before the release date they would otherwise have. It applies to determinate sentences, meaning sentences with a fixed length, including standard determinate sentences, detention in a young offender institution, sentences for people convicted under 18, extended determinate sentences and sentences for offenders of particular concern.

The starting point is that Home Office Immigration Enforcement has confirmed you are liable to be removed. Until that happens, the scheme does not come into play.

How early you can be removed: the two tests

Current policy sets two limits, and both have to be satisfied:

• removal can take place up to four years before the release point that would otherwise apply, and
• you must have served at least 30 per cent of the requisite custodial period, which is the part of the sentence to be served in prison

Your Early Removal Scheme eligibility date, usually written as ERSED, is whichever of those two points comes later. These figures took effect on 23 September 2025. Before that the window was shorter and the minimum was the halfway point, so older paperwork may show different dates.

Added days from a prison adjudication, and any time spent unlawfully at large, can push the ERSED later.

You do not have to agree to it

This is the part that surprises most people. Early removal does not need your consent, and you do not have to apply for it. The prison governor authorises the removal, and if you refuse to sign the authorisation form the removal can still go ahead.

Parole processes carry on alongside ERS where they apply, so one does not stop the other.

Who cannot be removed under the scheme

The scheme does not cover:

• indeterminate sentences, including life sentences, imprisonment for public protection and detention at His Majesty's Pleasure. Those cases fall under the separate Tariff Expired Removal Scheme
• sentences subject to section 247A of the Criminal Justice Act 2003, which covers specified terrorism offences and offences with a terrorist connection
• Irish nationals, unless the Home Office makes an exception
• terms that are not sentences, such as a detention and training order, a committal for contempt of court, or a default term for non-payment

Being recalled does not rule it out

If you were released on licence and then recalled to custody, you can still be removed under the scheme.

No licence, and what happens if you come back

Nobody removed under ERS is released on licence. There is no licence issued at all. For removals on or after 28 June 2022, the sentence is paused when you leave. If you return to the UK, you must be returned to custody and the sentence picks up from where it stopped, with release dates pushed back by the number of days you spent out of custody. Different rules apply to removals before that date.

If you were a recalled prisoner when you were removed and you later return, the case is dealt with as a fresh standard recall.

You can also be removed again under the original authorisation, provided no new reason to refuse removal has arisen.

If the removal does not go ahead

Removals fall through for all sorts of practical reasons. Where there is a realistic prospect of arranging it again promptly, you may be held in an Immigration Removal Centre. Otherwise you must be returned to prison, normally within 48 hours.

One point matters a great deal here: time spent in an Immigration Removal Centre does not count as time served on your sentence.

If the Home Office confirms it no longer has an interest in removing you, you are treated as a domestic prisoner again.

ERS is not the same as the deportation decision

Being eligible for early removal is a prison and immigration administration question. Whether a deportation order should be made at all is a different one.

Under section 32 of the UK Borders Act 2007, the Home Secretary must make a deportation order for a foreign criminal, which includes a person who is not a British or Irish citizen, is convicted in the UK, and receives a prison sentence of at least 12 months. That duty is subject to the exceptions in section 33 of the same Act.

So the length of the sentence is what triggers the duty, and the exceptions are where any challenge lives. Those are two separate pieces of paperwork, and they are often confused in prison.

The rules are due to change again

Section 35 of the Sentencing Act 2026 would remove the minimum pre-removal custodial period from section 260 of the Criminal Justice Act 2003 altogether. As things stand it is not in force, and no commencement date has been set.

Until that changes, the 30 per cent minimum and the four-year window are the rules that apply. Because this area has already changed once in recent years, no date should be relied on unless the prison has confirmed it in writing.

What this means for you

If a family member is a foreign national in prison here, the practical position is this. Removal can happen years before the release date you were told about. It can happen without their agreement. There is no licence, so there is no supervision period in the UK to plan around. And if they come back, the remainder of the sentence is still waiting.

The documents worth getting hold of are the sentence calculation sheet showing the ERSED, any Home Office decision letter or deportation notice, and the sentencing remarks. Those three together show whether the dates are right and what, if anything, is open to challenge.

Talk to Case Review UK

Case Review UK provides independent written assessments of criminal cases by senior UK lawyers and barristers, including deportation appeal support, release date reviews and post-sentence appeal assessments. Fixed fee, no hourly billing, and a written report in 7 to 14 days.

If you want the paperwork read by someone independent of the police, the CPS and the court that dealt with the case, get in touch.

WhatsApp: +44 7417 361696
Email: enquiries@casereviewuk.co.uk

This article is general information about the law and policy in England and Wales. It is not legal advice on any individual case, and Case Review UK is not a substitute for a solicitor.