Failing to comply with a Foreign National Offender (FNO) conditional caution can result in criminal prosecution for the original offence. However, not every difficulty in meeting the conditions necessarily results in prosecution. The Home Office guidance explains how authorities monitor compliance, investigate breaches and assess circumstances that may prevent an individual from leaving the UK.
Understanding what happens if you breach an FNO conditional caution is particularly important where unexpected circumstances affect departure.
For an explanation of how these cautions operate, read our earlier article on Foreign National Offender Conditional Cautions.
How Does the Home Office Monitor Compliance?
Immigration Enforcement is responsible for monitoring whether individuals comply with their FNO conditional cautions. The Foreign National Offenders Returns Command oversees cases involving individuals living in the community.
Different teams monitor different requirements:
- Reporting requirements: Reporting centres and Immigration Compliance and Engagement teams monitor attendance.
- Travel documentation: Home Office immigration officials monitor compliance with documentation requirements.
- Departure arrangements: Immigration Enforcement checks whether individuals have left the UK within the required period.
Where authorities identify non-compliance, Immigration Enforcement may refer the matter to the police. The police and Crown Prosecution Service (CPS) determine whether a breach has occurred and whether prosecution should resume.
What Happens If Someone Fails to Leave the UK?
Failure to leave the UK within the period specified in the caution constitutes a breach. UK Home Office guidance states that the case management team must notify the police when an individual fails to depart. The police will then recommence prosecution for the original offence.
However, the guidance distinguishes deliberate non-compliance from circumstances genuinely preventing departure. This distinction becomes particularly important where an individual encounters unexpected difficulties.
What If Someone Cannot Leave Due to Unexpected Circumstances?
An individual may encounter circumstances that prevent departure despite previously agreeing to leave. UK Home Office guidance requires authorities to consider whether the problem can be resolved within the permitted timeframe. Where a barrier cannot be resolved, prosecution for the original offence may resume.
However, genuine circumstances may arise where departure is impossible and the individual is not deliberately attempting to delay or avoid removal.
In these cases, the police or CPS must consider whether:
- The circumstances amount to non-compliance.
- Prosecution for the original offence should proceed.
- Departure could still take place within a reasonable timeframe.
Where departure remains achievable, authorities may maintain the conditional caution. The police must liaise with Immigration Enforcement when assessing whether the proposed timeframe is reasonable.
Can Someone Be Arrested for Breaching an FNO Conditional Caution?
Yes. Section 24A of the Criminal Justice Act 2003 allows police to arrest an individual without a warrant where they suspect a failure to comply with the conditions.
However, an alleged breach does not automatically establish that prosecution should proceed.
The police must consider the circumstances, including whether the individual had a reasonable excuse for failing to comply.
The document signed when accepting the caution may also be admitted as evidence in criminal proceedings concerning the original offence.
What Happens If Someone Returns to the UK in Breach of Their Caution?
Where an individual returns before their permitted exclusion period expires, they may face prosecution for the original offence. UK Home Office guidance explains that Immigration Enforcement must notify the police when it becomes aware of such a return.
The relevant case working team must also update the individual’s records. The police then assess the breach and determine what action is appropriate.
Statutory time limits may affect whether prosecution can proceed. The guidance recognises that prosecution for the original offence may no longer be possible where the applicable statutory time limit has expired.
Can Someone Withdraw from an FNO Conditional Caution?
An individual may change their mind after accepting an FNO conditional caution.
However, withdrawing from the caution makes them liable to prosecution for the original offence. The guidance also states that making an application to remain in the UK on protection or human rights grounds while subject to the caution constitutes a breach.
In such circumstances, the receiving authority should refer the case to the relevant prosecutorial authority.
For further information about who may receive these cautions, read our article on Foreign National Offender Conditional Caution Eligibility.
Seeking Immigration Advice Following an Alleged Breach
An alleged breach of an FNO conditional caution can have serious legal consequences. The circumstances of non-compliance, any reasonable excuse and the applicable prosecution time limits may all require consideration.
With over 20 years of combined immigration experience, Morgan Smith Immigration provides specialist advice on UK immigration matters. If you require immigration advice, contact our team on call us at 0203 959 3335 or email [email protected]. Follow Morgan Smith Immigration for the latest UK immigration news, policy changes and legal developments.
