What is deportation? What is the rationale behind it?

What is a deportation order?

It is the process of enforced departure from the UK as a result of an order signed by the Home Secretary. The order also prevents the person being deported from returning to the UK until the order is revoked. The other types of departure from the UK include removal, supervised departure and voluntary departure. These all affect the ability of the individual to return to the UK A deportation order, on the other hand, has continuing legal force after the departure date which removal, supervised and voluntary departure do not.

What are the effects of a deportation order?

The immigration rules, at paragraph 362, set out the effects of a deportation order which:

  • requires the subject of the order to leave the UK

  • authorizes the detention of the subject of the order until they leave the UK (although this is subject to a common law restraint on the length of the detention)

  • prohibits the re-entry of the subject of the order 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

  • makes an individual who enters whilst an order in their name is still in force, an illegal entrant (under section 33A of the Immigration Act 1971).

What does the deportation process consist of and can a deportation order be appealed against?

The first formal step in the whole process consists of the serving of a notice of decision to deport (one type of a Notice of Immigration Decision) on the person in question. In this notice it contains the reasons for the decision to deport and the country to which the Home Office propose to deport the person. It also contains the individual’s appeal rights.

A person can lodge an appeal against the notice of decision to deport because it is a Notice of Immigration Decision and therefore Immigration Judge’s at the Immigration & Asylum Chamber have jurisdiction. There can be no appeal once a deportation order has been signed. However, section 82 of the Nationality, Immigration and Asylum Act 2002 leaves open the possibility for appealing against a refusal to revoke a deportation order.

What are the grounds for deportation?

Under the Immigration Act 1971, there are three grounds for deportation. Firstly, if the Secretary of State deems the deportation to be conducive to the public good. Secondly, if the individual is a family member of a deportee. Thirdly, if it is the recommendation of a criminal court who has sentenced a person over 17.

Overstaying leave and breach of conditions of leave were once grounds for deportation but they are now grounds for removal instead.

Who may be deported?

Under section 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 section 7 of the Immigration Act 1971. EEA nationals have greater protection from deportation due to developments in EU and domestic law and are only liable to be deported on limited 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. It also runs until the person who is the subject of the order becomes a British citizen, if this becomes the case. A deportation may be revoked on application. Under paragraphs 390-392 of the immigration rules, the factors taken into account when reviewing such an application are: the grounds of which the order to deport was made, representations made in support of revocation, the interests of the community (being the UK) and the interests of the applicant. The interests of the community include the maintenance of effective immigration control and the interests of the applicant take into account any compassionate circumstances raised in the application to revoke.

Under paragraph 391, the deportation order will not usually be revoked until the applicant has been away from the U.K. for at least three years. Home office internal guidance suggests that a normal period before revocation for a person (and their family) deported under what are now grounds only for removal (overstaying and breach of conditions) is three years. It suggests ten years for anyone deported after conviction of serious offences (of violence, persistent/ large-scale burglary or theft, blackmail, forgery, drug offences and public order offences).

Revocation will not normally be granted unless the situation has materially altered i.e. there has been a change of circumstances or fresh information has come to light since the order was made.

What is the rationale for deportation?

Deportation orders are most commonly used in relation to people who have been convicted of a criminal offence. According to the Immigration Act 1971, the purpose is not to further punish the person for their criminal offence(s) but that a deportation order should be issue if the continued presence of this person is contrary to public interest in some way. However, the present executive policy implemented by the government suggests that any non-British person who commits a criminal offence should be removed. There is a view that it is a sanction for a breach of hospitality.