When a Suspended Sentence Is No Longer Lenient: The Deportation Rules That Changed in March

Until March this year, a foreign national who received a suspended sentence faced a very different set of immigration consequences to one who received the same sentence as an immediate custodial term. That distinction no longer exists. Since 22 March 2026, a suspended sentence of 12 months or more triggers the same mandatory deportation duty as an immediate custodial sentence of the same length. For criminal defence solicitors and immigration lawyers, this is one of the most consequential shifts in the law affecting foreign national clients in years, and it demands attention at every stage of a criminal case, not just after sentencing. ## What Changed and When Section 45 of the Sentencing Act 2026 amended the UK Borders Act 2007 and the Nationality, Immigration and Asylum Act 2002 by removing provisions that previously excluded suspended sentences from counting as a period of imprisonment for the purposes of defining a foreign criminal. The change came into force on 22 March 2026, the same date as the Sentencing Act's new presumption to suspend sentences of 12 months or less and its extension of the maximum duration of suspended sentences to three years. The timing was deliberate. The Government confirmed in a letter from the Minister for Border Security and Asylum to the Home Affairs Select Committee that the two provisions were commenced together to ensure there was no gap between the new sentencing framework and the deportation duty. Put plainly: as courts began suspending more sentences under the new presumption, the automatic deportation trigger was simultaneously extended to capture them. The practical effect is that any foreign national convicted on or after 22 March 2026 who receives a suspended sentence of 12 months or more is now subject to mandatory deportation consideration, unless one of the statutory exceptions applies. ## Who Is Affected The automatic deportation duty under section 32 of the UK Borders Act 2007, as amended by the Sentencing Act 2026, applies to all non-British and non-Irish citizens. This includes individuals with settled status, Indefinite Leave to Remain, and long-term residents who have lived in the UK for many years. The length of residence does not, of itself, exempt someone from the mandatory duty. The change affects suspended sentences handed down on or after 22 March 2026. Sentences imposed before that date are not caught by the new mandatory duty, but they may still cause difficulties under the separate Part Suitability rules, which govern whether someone can make or renew an immigration application. Under Part Suitability, a historic suspended sentence of 12 months or more, even one handed down years ago, can now trigger a mandatory refusal of future visa, extension, or settlement applications with no time limit attached. ## The Statutory Exceptions Mandatory deportation is not the same as certain deportation. The duty to deport can be displaced where deporting someone would breach their rights under the European Convention on Human Rights, most commonly Article 8, the right to family and private life, or Article 3, the prohibition on torture and inhuman or degrading treatment. Deportation is also excluded where it would breach the Refugee Convention. However, the bar for displacing the deportation duty is high and has been set higher still by recent case law. Where a sentence is between 12 months and four years, courts will consider exceptions relating to a genuine and subsisting relationship with a British partner of at least five years, or being a parent of a British or settled child. Where the sentence is four years or more, those exceptions alone are not sufficient. Something further, described by the courts as circumstances of an especially compelling kind, must be demonstrated. Rehabilitation, good behaviour since the offence, and the passage of time are considered, but courts have been consistent that they do not, on their own, displace the public interest in deportation. Early specialist advice, before sentencing if possible, is essential. ## What This Means in the Courtroom The change has a direct bearing on how criminal cases involving foreign national defendants should be approached. Where a sentence in the range of 12 months or more is a realistic outcome, the immigration consequences of a suspended sentence are now identical to those of an immediate custodial term. This matters for plea decisions, for the evidence put before a sentencing judge, and for the arguments made in mitigation. Defence solicitors should be establishing their client's immigration status and length of residence at the earliest opportunity and considering whether specialist immigration advice is needed alongside the criminal defence work. Where a client has a British partner, British children, or other family ties in the UK, evidence of those relationships and their quality needs to be gathered and presented, since it forms the factual basis for any subsequent Article 8 argument. It is also worth noting that the Sentencing Act 2026 introduced a presumption to suspend sentences of 12 months or less. A judge who suspends a sentence in the belief that they are giving a client a more lenient outcome may not appreciate that, for a foreign national, the immigration consequences are now identical to an immediate term. There is no obligation on the sentencing court to consider immigration consequences, but the defence can and should raise them in appropriate cases. ## The Broader Context The March 2026 change sits within a sustained policy direction from the current government toward faster removals and a narrower scope for human rights arguments. The Government's Immigration White Paper of May 2025, the Restoring Order and Control statement of November 2025, and the Immigration and Asylum Bill announced in the King's Speech of May 2026 all signal the same direction of travel. For solicitors advising foreign national clients facing criminal proceedings, the message is straightforward. The consequences of a conviction that results in a sentence of 12 months or more, whether immediate or suspended, are now severe and potentially irreversible. That needs to be part of the advice from the outset, not something clients discover after sentencing. Sources UK Government: Foreign criminals excluded from UK under strict new rules www.gov.uk/government/news/foreign-criminals-excluded-from-uk-under-strict-new-rules UK Parliament: Minister for Border Security and Asylum letter to the Home Affairs Select Committee, March 2026 committees.parliament.uk/publications/51937/documents/288233/default Electronic Immigration Network: Government to commence duty to deport foreign criminals given suspended sentence of 12 months or more www.ein.org.uk/news/government-commence-duty-deport-foreign-criminals-given-suspended-sentence-12-months-or-more House of Commons Library: Changes to UK visa and settlement rules after the 2025 immigration white paper commonslibrary.parliament.uk/research-briefings/cbp-10267 UK Legislation: Sentencing Act 2026, Section 45 www.legislation.gov.uk UK Legislation: UK Borders Act 2007, Section 32 www.legislation.gov.uk UK Legislation: Nationality, Immigration and Asylum Act 2002, Part 5A www.legislation.gov.uk