The Home Office has published its first policy for offering foreign nationals with limited leave a choice: admit a minor offence and leave Britain, or be prosecuted for it. The power is sensible in principle. The record on whether it works, and on how consent is protected, is thin.
On 18 September 2026 the Home Office published guidance for its own staff titled “Foreign National Offender (FNO) conditional cautions (policy)”, version 1.0, marked as new. It governs a power that Parliament widened in June: police and prosecutors may now offer a conditional caution requiring departure from the United Kingdom not only to people with no right to be here, but to foreign nationals who hold limited leave. The practical effect is that a student, worker or family-route migrant who commits a minor offence can be offered removal in place of a court case.
The mainstream framing is binary: either a long-overdue tool for removing offenders, or a quiet erosion of due process. The documents support a more awkward conclusion. The tool is lawful and, on its stated terms, carefully fenced. But the Home Office’s own assessment says it has been used only about 130 times since it was introduced, and the expansion rests on a premise the department itself concedes may not hold: that foreign nationals will agree to it.
What the Law Now Allows
Conditional cautions are creatures of statute. Under section 22 of the Criminal Justice Act 2003, an authorised person may give one to an adult offender, attaching conditions. Subsections (3D) to (3G), inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and in force from 8 April 2013, allow conditions aimed at securing the departure of a “relevant foreign offender” from the UK or preventing return for a set period.
Until this summer, that category covered people subject to removal directions or a deportation order. Section 188 of the Crime and Policing Act 2026 added a new paragraph (za): an offender with limited leave to enter or remain. The section took effect on 29 June 2026 under S.I. 2026/689. The Home Office’s Circular 004/2026 describes the previous position plainly: these cautions could only be given where the offender “did not have any existing leave to enter or remain here.”
What the Guidance Says
The September policy is the operating manual. Read directly, it is more restrictive than headlines suggest. According to the guidance, the principal aim is removal: the caution is meant “to secure their removal from the UK and ensure they do not return within a specified period of time.” Its main terms are:
- Eligibility: an adult with limited leave, liable to removal or subject to a deportation order, where the likely sentence is two years or less and there are no barriers to deportation (sections 3.2–3.4).
- Exclusions: no caution where there are reasonable grounds to suspect trafficking, whether the person is victim or perpetrator, where the Crown Prosecution Service needs the person to give live evidence that cannot be given remotely, or where the person has indefinite leave (section 3.1).
- Barriers: an outstanding asylum or human rights claim, medical conditions affecting fitness to travel, claimed family circumstances in the UK, or no obtainable travel document. The guidance says a caution “must not be issued if any of the above barriers to deportation exist” (section 3.3).
- Conditions: a requirement to leave “normally within 16 weeks,” and exceptionally no longer than 24 weeks, plus a bar on return of at least five years, extendable by the CPS to ten (sections 4 and 4.2).
- Consent: the offender must admit the offence, have the effect explained, and sign a document recording the admission and consent. Withdrawing consent makes them “liable for prosecution for the original offence.” Non-English speakers must have it explained in a language they understand (section 2.1).
- Breach: failing to leave in time, or creating a barrier to leaving, is a breach, and prosecution for the original offence follows. The guidance states that a protection or human rights claim made while on a caution is treated as a breach (sections 6–7).
Two features deserve emphasis. First, the trafficking exclusion is a real safeguard, and it connects this policy to the argument the government is making elsewhere that the modern slavery system is being misused; RSN examined the thin evidence behind that claim in The Misuse Premise. A caution policy that depends on screening for trafficking is only as sound as that screening. Second, the sequence matters: the person must be screened for barriers before the offer, and any later protection claim counts against them. That design is coherent for the Home Office’s purposes. It also means the moment of acceptance carries enormous weight.
The Case for the Power
The justification is administrative and, in its way, conservative: enforce the immigration rules against those who break the criminal law without spending a trial and a prison place to do so. The Home Office’s equality impact assessment for the Crime and Policing Bill says the aim is to “save the expense of a trial and subsequent prison place.” The Bill’s explanatory notes describe the clause as expanding “the cohort of foreign national offenders who can be given a conditional caution.” A person who has committed an offence while their right to remain is conditional has, on any reasonable view, put that condition at risk. Offering departure rather than prosecution is a lawful and, for a minor offence, proportionate response.
The guidance, on its face, fences out the most vulnerable categories. That is the best version of the argument, and on paper it holds.
The Gap: Use, Consent and Evidence
The difficulty is evidence of whether the instrument works. The Home Office’s own equality impact assessment states that the caution “has been used only some 130 times since its introduction.” The same document records policing feedback that “very few foreign nationals elect, or would elect, to admit the offence.” It offers no projection of future volumes and says only that the proposal “will increase the size of the pool for future use of the caution.” It identifies no specific mitigations for the measure.
A larger eligible pool does not by itself produce more removals if the central requirement, a signed admission, is rarely given. The department’s own evidence therefore leaves open whether the 2026 expansion will change outcomes materially. Two things are not on the public record, as far as RSN could determine: how many cautions have been issued in any recent year, and how many recipients actually left the country. Bail for Immigration Detainees reports that the Home Office refused its Freedom of Information request for conditional-caution data under an exemption covering the apprehension and prosecution of offenders; that account is BID’s, and RSN has not seen the refusal itself.
The impact assessment is also candid on a point conservatives should not ignore. It says the amendment “would arguably result in direct discrimination against British citizens,” who cannot be removed in lieu of prosecution, and it treats this as justified under the Equality Act’s Schedule 3 exemptions and the public interest. That is a defensible position, but it is a policy choice the department has acknowledged rather than one it has avoided.
The Opposing View
Critics, led by BID, argue that conditional cautions risk “bypassing due process” because people are unlikely to receive specialist immigration advice at the moment of caution, and may agree to leave “unaware of the fact that they may have a right to remain in the UK.” They also warn that officers must make subjective judgements about who is a foreign national, with a risk of discriminatory policing. Free Movement reported BID’s concern when the Bill was in the Lords in July 2025, and has since carried its own account of the September guidance, most of which sits behind a members’ paywall and which RSN could not read in full.
The concern has substance on one point in particular. The guidance, as RSN read it, requires explanation of the caution in an understood language but does not, in the text reviewed, address access to legal advice before acceptance. Given that the caution requires an admission of guilt, the loss of a leave-based life in Britain, and a minimum five-year bar, the absence of a stated advice step is a legitimate question for ministers, not merely for campaigners. The answer may exist in other guidance; if so, it should be published alongside this one.
What Is Proven, Alleged and Not Established
- Established by primary documents: the statutory change (section 188, in force 29 June 2026); the published terms of the 18 September guidance; the Home Office’s own figure of roughly 130 uses; its own record that few foreign nationals are expected to admit offences.
- Alleged by critics, not established: that people are in practice accepting cautions without understanding their rights; that enforcement will be discriminatory. RSN found no case study, inspection finding or court ruling demonstrating either under the expanded power, which has been in force only since June.
- Not established by either side: how many cautions have been given since 2013 in any single year, how many recipients left, what the saving per case is, and how many limited-leave holders have been offered a caution since 29 June.
Implications
Enforcement by consent is attractive precisely because it is cheap. It is also the form of enforcement most dependent on the quality of the process around it. A power that is lawful, narrow on paper and used about 130 times since its introduction does not need to be abolished. It needs to be measured. The Home Office, which wrote the impact assessment that admits the take-up problem, should publish annual figures for cautions offered, accepted, completed and breached, broken down by immigration status, and should state plainly what advice a person is entitled to before signing.
Without that data the expansion is an act of faith. With it, Parliament and the public can judge whether the department has found a lawful alternative to trial and prison, or merely widened a door that few have chosen to walk through. This follows the pattern RSN has traced in recent weeks: a department whose processes and candour have needed outside scrutiny, as in the detention candour case and the torture-survivor accommodation ruling, where courts and critics supplied it.
Sources: Home Office, FNO conditional cautions policy (v1.0, 18 September 2026); Criminal Justice Act 2003 s.22; Crime and Policing Act 2026 s.188; Crime and Policing Act 2026 police powers factsheet; BID briefing on the Policing Bill.