Deportation or removal
Deportation is the enforced removal of non-UK nationals who have breached UK immigration rules, whether because they are here illegally or because they are ‘over stayers’. Removal from the UK is when the Secretary of State issues a Removal Notice to an individual informing them that they are required to leave the UK.
When will Removal occur?
A removal notice is usually required when a person has no leave to remain in the UK because they have overstayed a previous visa, or they entered the country illegally.
If a person is removed from the UK will they be allowed to return?
Where an individual is removed from the UK, they may 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, depending on whether they left under their own volition, or whether they were removed.
What is deportation from the UK?
Deportation is for the public good and requires a foreign national to leave the UK, and authorises his detention until they are removed from the UK. A deportation order can apply to any foreign national, even if they hold a valid visa. They will be prohibited from re-entering the country for the duration of the deportation order; and any leave to enter or remain in the UK given before the order was made is invalidated.
When the decision to make a deportation order has been taken, a notice will be given to the individual concerned informing them of the decision.
When will an individual automatically be deported from the UK?
Under Section 32 of the UK Borders Act 2007, the Secretary of State must make a deportation order in respect of a non- British criminal where:
- the criminal was convicted in the UK and sentenced to a period of imprisonment, and the period of imprisonment is 12 months or more, and
- the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
- the criminal was serving that sentence on or after 1 August 2008, and
- the criminal had not been served with a notice of decision to deport before 1 August 2008.
Are there any exceptions to automatic deportation?
Yes, the Border Act provides for the following exceptions to the duty to order automatic deportation:
- Where an individual raises a claim for Asylum under the Human Rights Act 1998.
- Where the individual was under the age of 18 on the date of conviction.
- Where the individual is an EEA citizen or the immediate family of an EEA citizen.
- Where there are mental health problems or the individual is a recognised victim of trafficking.
However, even where an exception applies, the Secretary of State can still pursue a claim for deportation.
In what other circumstances can someone be deported?
The Secretary of State may make a deportation in other circumstances, including where:
- the person’s deportation is conducive to the public good.
- the court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
- the person is the spouse, civil partner or child under 18 of a person ordered to be deported.
What is the process for deportation?
The Home Office will consider various factors when deciding whether to issue a Notice of Intention to Deport, including:
- The age of the individual.
- The length of their residence in the UK.
- The strength of their connections in the UK.
- Their personal history, such as their character, conduct and employment record.
- Their domestic circumstances.
- The nature of any offences they may have been committed.
- Any criminal record they may have.
- Any compassionate circumstances that exist.
- Any representations received on the individual’s behalf.
Before a decision is made whether to issue a deportation order, the Home Office will usually write to the individual stating that they are considering issuing a deportation order against them in the form of an Intention to Deport notice. The individual will be invited to make representations within 20 days as to why they should not be deported.
This provides the opportunity to the individual to argue their case and provide reasons why they should not be deported. For instance, they may wish to claim asylum, or that their removal would be in contravention of the Refugee Convention. All representations made should be as full as possible at this stage.
In the meantime, detention may be authorised, or an order made restricting the individual as to residence, employment or occupation and requiring them to report to the police pending the making of a deportation order.
A deportation order will not be made if the person’s removal under the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention.
When the individual’s representations have been considered, the Secretary of State will then decide whether the deportation order will be pursued. If it is intended to deport the individual, there is no automatic right to appeal the decision.
Right to appeal
You can only appeal if you are told in your decision letter that you have the legal right to appeal. The right to appeal is reserved for the following:
- The refusal of an asylum claim.
- The refusal of a Humanitarian Protection claim.
- The refusal of a human rights claim.
- The revocation of protection status (meaning the removal of your Refugee Status or Humanitarian Protection Status).
- The removal of your entitlement to remain under European law.
Since October 2014, you are only allowed to remain in the UK during the appeal if returning you to your home country would result in the possibility of ‘serious and irreversible harm’ to you or to a family member.
If you do have the right to appeal, it is vital to take the advice of an experienced immigration lawyer.
How long do deportation orders last?
A deportation order cannot be revoked until after three years, save for in exceptional circumstances.