There are many inaccuracies and myths that go along with what people consider to be Deportation.
Deportation. The word itself conjures up a scary process where an individual thinks of themselves as being banished from the UK and never being able to return again. In some ways, this is true, but there are many inaccuracies and myths that go along with what people consider to be Deportation.
It should be remembered that be that the terms Removal and Deportation are entirely different.
Removal means where the Secretary of State issues a Removal Notice on a person, informing them they are required to leave the UK, usually because they have no leave to remain, having overstayed a previous visa or having been an illegal entrant to begin with.
Where a person is removed from the UK, they can still make an application to return to the UK, but under new immigration rules introduced in October 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 voluntarily left or were removed.
Deportation powers can be used against people whether they have no leave, limited leave or indefinite leave. More recently, new laws were passed to deport foreign criminals. This segment details Deportation as contained under the Immigration Act 1971 (A further segment under the provisions of Automatic Deportation is detailed below).
Deportation is pursued by the Home Office where:
• The are recommendations for deportation
• Deportation is conducive to the public good
• Family member of people being deported. The effect of a Deportation order is that once it is made and while it continues in force, it invalidates any existing leave and it prevents any further leave from being given.
The first step for the Home Office to take in the deportation process is to issue a notice of intention to deport. When considering whether to issue a notice of intention to deport and to make a deportation order, the Home Office will consider the following factors including:
• The person’s age
• Their length of residence in the UK
• Their strength of connections with the UK
• Their personal history, including character, conduct and employment record
• Their domestic circumstances
• The nature of any offence of which the person has been convicted
• The person’s previous criminal record
• Any compassionate circumstances
• Any representations received on the person’s behalf
Before issuing a decision to make a deportation order, the Home Office will normally write to the person stating that it is considering deportation proceeding and will ask for them to make any representations to be made by a deadline.
The first stage would be a for a person to argue that the decision should not have been made and their reasons, any human rights reasons why they should not be deported or if they have claimed their removal, would be in breach of the Refugee Convention.
It is important that the person includes as much evidence a possible to argue why they should not be Deported. For example, where a man is served a deportation order because of having been convicted of a serious criminal offence, then he may wish to argue that he has established a private and family life under Article 8 of the European Courts of Human Rights.
The Secretary of State will then usually issue a decision on whether he wishes to pursue the deportation order. If the Secretary of State intends to pursue the deportation order then the person should have right of appeal against the decision. The right of appeal is a critical stage in proceedings as it will be the best opportunity for the person to put together a case to argue why they should not be deported. The person may wish to reply on witnesses such as friends and family members, what positive contributions they have made to society such as tax contributions, obtaining education qualifications and other good traits that may convince an Immigration Judge that the Deportation Order should not be pursued. The assistance of an experienced immigration lawyer at this stage is vital.
If the person’s case is successful then the Deportation order will not be pursued. If the person’s loses the case and are all appeal rights are exhausted, the deportation order will be signed and enforced. The person will then be deported from the UK.
The Immigration Rules does not allow a Deportation order to be revoked for at least three years. However, the are exceptional circumstances that person can put forward to obtain a revocation order before the three years, specifically on the basis of them having a spouse and child and they are unable to joint the deportee aboard. If the revocation order is revoked, this does not give the person an automatic right to return to the UK. However the Immigration authorities will consider the application in great detail.
Revocation of Indefinite leave in deportation cases
In cases where a person is liable to deportation but they cannot be deported for “legal” reasons, the Home Office may instead revoke their indefinite leave to remain. This power may be used on recommendation of a criminal court.
Automatic Deportation of Foreign Criminals
Section 32 of the UK Borders Act 2007 places a duty on the Secretary of State 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 sentenced to either:
• a period of imprisonment of at least 12 months; or
• a period of imprisonment of any duration for a particularly serious offence
This duty applies to all foreign criminals except where they fall within one of the exceptions in section 33. Where an exception does apply, deportation may still be pursued.
Section 33 of the Act details those who are exempt from the provisions of automatic deportation. There are six exemptions, these are 1) where an individual raises a claim for Asylum and Human Rights 2) where the foreign criminal was under the age of 18 on the date of conviction the individual will be exempt from automatic deportation 3) 4) where the foreign criminal is an EEA citizen or immediate family member of an EEA citizen 5) extradition, Mental Health Provisions, Recognised victims of trafficking.
It is evident that the Home Office have developed a far tougher stance to enforce Deportation on those convicted of serious criminal offences, who are non-conducive to the pubic good. It is even possible to strip a person who was naturalised a British citizen, of British citizenship in certain circumstances. The key to avoid deportation? In essence, remain in the UK legally and do not get convicted of a serious criminal offence.
The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.