The first thing to note when dealing with deportation from the UK is to make a distinction between deportation and removal from the UK.
Removal from the UK occurs whereby the Secretary of State issues a Removal Notice on a person informing them that they are required to leave the UK.
A removal notice is usually required when a person has no leave to remain in the UK as they have overstayed a previous visa or they have entered the country illegally when they first entered.
In the situation where a person is removed from the UK they will be able to apply to return to the UK however, since 2008 a person who has been removed from the UK may not apply for a visa for a period of 1, 5 or 10 years. This will depend upon whether they left under their own volition or they were removed.
Deportation requires the individual to leave the UK and authorises his detention until he is removed – this is done through a document called a deportation order. That individual will also be prohibited from re-entering the country for as long as the deportation order is in force and invalidates any leave to enter or remain in the UK given to him before the order was made. Accordingly a deportation order can apply to any foreign national in the UK even if they hold a valid visa.
Under Section 32 of the UK Borders Act 2007 The Secretary of State has a duty to make a deportation order in respect of a person who is not a British citizen who has been convicted in the UK of an offence and sentences to either:
A period of imprisonment of at least 12 months
A period of imprisonment of any duration for a particularly serious offence
Section 33 of the UK Border Act provides for the following exceptions to the duty of deportation provided for by Section 32. They are as follows:
Where an individual raises claim for Asylum
Where an individual raises a claim under the Human Rights Act 1998
Where the foreign criminal was under the age of 18 on the date of conviction
Where the foreign criminal is an EEA citizen
Where the foreign criminal is the immediate family of an EEA citizen
Where there are mental health problems or the individual is a recognised victim of trafficking
However, in the circumstances that an exception applies this will not bar any request for deportation as the Secretary of State can still pursue a claim for deportation.
The Home Office will pursue the deportation of individuals from the UK in the following circumstances:
There are recommendations for deportation
Deportation is required for the public good
That person is a family member of another who is to be deported
The first step in the deportation process is for the Home Office to issue a notice of intention to deport. The Home Office will take into consideration various factors when deciding whether to issue a notice of intention to deport. The factors which they will consider will relate to the following:
The age of the person
The length of that person’s residence in the UK
The strength of that person’s connections in the UK
The personal history of the person – this will include their character, conduct and employment record
The domestic circumstances of that person
The nature of any offences which may have been committed by that person
The previous criminal record of that person
Any compassionate circumstances
Any representations received on the persons behalf
Before a decision is made on whether to issue a deportation order to that person the Home Office will usually write to that person stating that they are considering issuing a deportation order against them and asking them to make certain representations to be made by a specific deadline.
This will then provide that person with an opportunity to argue the decision and provide reasons why they should not be deported such as Human Rights (right to establish a private and family life) or that there removal would be in contravention of the Refugee Convention. An individual should try and include as much information as is possible at this stage.
The Secretary of State will then issue a decision on whether the deportation order will be pursued. If the deportation order is pursued then the individual who is the subject of the order will have a right to appeal the decision.
The right to appeal is the best way for an individual to put together a case as to why they should not be deported. Issues which can be examined here are witness statements from friends and family members and education qualifications can be brought into play here to try and convince an immigration judge that the case should not be followed.
If the appeal is successful then the individual will have the deportation order imposed against them dropped. If the appeal is unsuccessful the deportation order will be signed and enforced and the person will be deported from the UK.
The immigration laws of England and Wales do not allow a deportation order to be revoked until after three years except for in exceptional circumstances.
Use the box below to put your question to a solicitor or barrister. You will usually have an answer back within minutes.