What is deportation?
Deportation is the process of enforced departure from the UK as a result of an order signed by the Home Secretary.
Effects of a deportation order
Under para 362 of the Immigration Rules, a deportation order:
- requires the subject of the order to leave the UK;
- authorises the detention of the subject of the order until they leave the UK;
- prohibits the individual’s re-entry into the UK for as long as the order is in force;
- invalidates any leave to enter or remain granted to the person either before the order was signed or while it was in force.
Grounds for deportation
Under para 363 of the Immigration Rules, a person can only be deported where:
- the Secretary of State deems the person’s deportation to be conducive to the public good;
- the person is the spouse or civil partner or child under 18 of a person ordered to be deported;
- a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
Who may be deported?
Under s 3 of the Immigration Act 1971, ‘a person who is not a British citizen’ may be deported. Here ‘British citizen’ includes not only people with British citizenship but also Commonwealth citizens who either married a British man before 1 January 1983 or who had a British born parent.
Other exemptions include Commonwealth and Irish citizens who were ordinarily resident in the UK on 1 January 1973 and who meet residence conditions (that the proposed deportee had been ordinarily resident for five years before the decision to deport). However, even people who have indefinite leave to remain and are settled may be deported unless they are exempt under the residence conditions of the Immigration Act. EEA nationals have greater protection from deportation and – at least until Brexit takes effect – are only liable to be deported on limited grounds.
The deportation process
When a decision to make a deportation order has been taken (otherwise than on the recommendation of a court) a notice will be given to the person concerned informing him/ her of the decision. Following the issue of this notice the Secretary of State may authorise detention or make an order restricting a person as to residence, employment or occupation and requiring him/ her to report to the police, pending the making of a deportation order.
Once the deportation order has been made, the individual will normally be removed from the UK. They will be returned to the country of which they are a national, or which has most recently provided them with a travel document, unless they can show that another country will receive him.
Right of appeal
There is no automatic right to appeal against a deportation order. However, an appeal may be made if the decision to deport would be contrary to the UK’s obligations under the Refugee Convention or the European Convention on Human Rights (eg, breach of the right not to be subjected to torture or to inhuman or degrading treatment or punishment; or breach of the right to respect for private and family). People who have lived in the UK for many years and fear they may be subjected to persecution if deported might also be allowed to appeal on compassionate grounds.
How can a deportation order be revoked?
A deportation order runs unless or until it is revoked; it does not automatically expire after a certain period of time. Under para 390 of the Immigration Rules an application for revocation of a deportation order will be considered in the light of all the circumstances including:
- the grounds on which the order was made;
- any representations made in support of revocation;
- the interests of the community, including the maintenance of an effective immigration control;
- the interests of the applicant, including any compassionate circumstances.
Under para 391 of the Immigration Rules, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not previously before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
If someone is deported following a criminal conviction, the continuation of the deportation order will generally be considered to be the proper course for at least 10 years if the crime was punishable with up to four years in prison and indefinitely if it was punishable with more than four years jail (unless this would breach the ECHR or the Refugee Convention)/
According to para 392 of the Immigration Rules, revocation of a deportation order does not entitle the individual to re-enter the UK; it merely makes them eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or to the Home Office.