Deportation and Administrative Removal

Introduction to Deportation

Deportation is a process which requires a person against whom an order of deportation is issued to leave the United Kingdom and it also stops such person from obtaining lawful re-entry in the UK while the deportation order is in force.

  • Any deportation order will automatically invalidate any existing visa or leave to remain
  • The Secretary of State has a discretionary power to issue or make a deportation order.
  • British citizens and some others with the right to abode in the UK are not subject to deportation and cannot be deported.
  • Some Irish and Commonwealth citizens are also exempt from any deportation

Grounds for deportation

A deportation order can only be issued on the following grounds:

  • Where the presence of such person is harmful to the general public or not conducive to the public good
  • The person is a member of the family of a deportee, and
  • Where a court has recommended deportation, and the person or deportee is over the age of 17 or where the person is convicted of an offence resulting in imprisonment

It is important to note that traditionally the Home Office considered that deportation is conducive to the public good where the deportee has been convicted of

  • Serious crime

OR

  • Involved in a series of lesser offences

Foreign Criminals

  • Foreign adult nationals who are involved in crimes and who receive a punishment of imprisonment of over 12 months are automatically subject to deportation.
  • However, where a foreign national is involved in lessor or minor offences and receives a custodial sentence of fewer than 12 months, he may be deported at the Secretary of State’s discretion.
  • Foreign criminals are not given any right of appeal against an order automatically to deport them
  • However, they may bring a proceeding against deportation on the grounds of Human Rights.
  • Where the foreign criminal is an EEA national he will not be subject to automatic removal.
  • An EEA National can only be removed from the UK on the grounds of public security, public policy and public health (Please refer to Freedom of Movement)

Example

Kiran is a foreign national and she was involved in some serious crime and was sentenced to two years in prison. Kiran is automatically subject to deportation, which means that she will be deported to India once she has finished her sentence

Rana is also a foreign national and was involved in some crimes and was sentenced to six months in prison. Once Rana has spent his sentence, it is up to the Secretary of State to either deport him or let him stay in the UK

General Procedure

Step 1

  • The Home Office takes a decision to deport
  • Notice of deportation is given to the deportee
  • The deportee is likely to be detained

Step 2

  • The person who may have right to appeal, exercises such right
  • Appeal is also made on Human Right basis

Step 3

  • If such person fails to appeal or his appeal is rejected

Step 4

  • The Secretary of State will sign the deportation order
  • The person is then deported to his native country or to another country which is likely to accept him

Voluntary Deportation

Where a person leaves the UK before the Secretary of State signs the deportation orders such deportation is known as voluntary deportation. It has certain benefits please refer to the table below

Table

Time restrictions for new application

Reason

Length of time ban

Applicant previously overstayed in the UK for less than 90 days

·         But left the UK voluntarily

·         At his/her own expense

NO Ban

He/she can re-apply any time for Entry Clearance for a visitor, student, marriage and other categories

Applicant entered the UK illegally, overstayed for more than 90 days

Breached condition of his stay or used deception while he was in the UK

·         But left the UK voluntarily

·         At his/her own expense

1-year Ban, from the date they left the UK.

New application

He/she can re-apply any time for Entry Clearance for a visitor, student, marriage and other categories once the ban is over

Applicant entered the UK illegally, overstayed for more than 90 days

Breached condition of his stay or used deception while he was in the UK

·         But left the UK voluntarily

·         However, at the expense of the Home Office

·         Within 6 months of been notified or served with a removal notice

·         Within 6 months of exhausting appeals

·         Or within 6 months of exhausting administrative review process

2-year Ban from the date applicant left the UK.

New application

He/she can re-apply any time for Entry Clearance for a visitor, student, marriage, business and other categories once the ban is over

Applicant entered the UK illegally, overstayed for more than 90 days

Breached condition of his stay or used deception while he was in the UK

·         But left the UK voluntarily

·         However, at the expense of the Home Office, or

·         Removed from the UK as a condition of caution

5-year Ban from the date applicant left the UK.

New application

He/she can re-apply any time for Entry Clearance for a visitor, student, marriage, business and other categories once the ban is over

·         Applicant used deception in an application for entry clearance

·         Where the applicant is removed or deported from the UK

10-year Ban from the date applicant left the UK.

New application

He/she can re-apply any time for Entry Clearance for a visitor, student, marriage, business and other categories once the ban is over

 

Revocation of a deportation order

A person who is subject to deportation can apply for annulment or revocation of a deportation order. In making a decision the Home Office will consider the following facts

  • The grounds on which a deportation order is made
  • Any representation made in support of deportation
  • The interest of the community
  • The interest of the applicant and any compassionate circumstances

Family Members of Deportee

The situation of family members of a deportee is as following

  • The family member will also be liable for deportation
  • Family includes his/her spouse or civil partner and children under the age of 18
  • An adopted child will also be considered as the child of depotee
  • An illegitimate child will be considered as the child of the mother/deportee
  • The rule on family is considered very harsh as it is likely that the family of the deportee may not have been involved in any breach of immigration law or any other law, but they will be deported along with the deportee

Important

The family members who have acquired permanent status or right of abode are not subject to deportation and they will not be deported.

Spouse or Civil Partner

A spouse or civil partner of a deportee will not be deported, who has

  • Qualified for settlement in his/her own right

OR

  • Such spouse has been living apart from the deportee

Children of the deportee

Similarly, a child of a deportee will not be deported, where

  • Such child’s mother or father are living apart from the deportee

OR

  • they have eft home and established themselves on an independent basis

OR

  • They have married or formed a civil partnership before the deportation decision was taken by the Home Office

Re-Entry of the Family of Deportee

The family and child of a deportee may be able to apply for re-admission to the UK where

  • The child reaches the age of 18 years, or
  • In the case of a spouse, when the marriage or civil partnership concludes or comes to an end

Human Rights other than Family and Private life

A person will not be deported from the UK where there is evidence and reasons to believe that he has a real danger or risk of

  • Being killed unlawfully, by the state or where the state is unwilling to provide the deportee with protection, which is against Article 3 of the European Convention on Human Rights
  • Suffering real harm or other treatment which is against Article 3 of the European Convention on Human Rights. This may include torture and other degrading treatment
  • Or where his rights under Article 5 and Article 6 of the European Convention on Human Rights will be breached

Article 6 may also be invoked or relied on, where upon the deportee

  1. does not have access to communication facilities in the country of return
  2. is required to undertake a medical examination
  3. will not have financial means or access to funds to follow his civil claim
  4. will not have access to interpreters
  5. wants to represent himself in the UK court
  6. is required to provide evidence in the UK court
  7. requires direct personal contact in order to instruct his lawyer in the UK

Human Rights under Family and Private life

A deportee can also challenge the Home Office’s decision to deport him on the grounds of private and family life in the UK

  • By private life, it means the strength of a deportee’s ties to the UK for example, friends, education, work and leisure activities, charitable work, participation in community-related activities
  • The deportee can also engage his right to family life in the UK, by family life it means that the expulsion or deportation of the person will separate him from his family in the UK
  • Family includes married partner or civil partner and their children
  • Relationships of grandparents and grandchildren, uncles and aunts, nephews and nieces may also be considered as part of family life

Administrative Removal

Removal from the United Kingdom is described as administrative removal. The people who could be removed from the UK through administrative removal are the following:

  • Someone who has failed to adhere to/observe the conditions attached with his visa (leave)
  • Overstayers
  • Someone who has obtained a visa (leave to enter or remain) by deception or someone who is currently looking to or has applied to obtain a visa (leave) through deception
  • The family members of person listed above, including children and civil and married partners

Example

Ali is a student at a university in the UK, he is allowed to work 20 hours, however, he has been caught by the Home Office working full time in breach of his leave or condition of his visa.

Ali is likely to be administratively removed from the UK

Procedure

  • A notice of demonstrative removal will be served
  • The notice is generally served in person by immigration officers
  • The person who is served with the notice can leave the UK voluntarily; or
  • Removal directions will be set by immigration officers
  • In the case of non-voluntary removal, the cost of removal is met by the UK government
  • There is no right of appeal against the decision of the Home Office
  • However, a person can apply for asylum or humanitarian protection (please refer to the chapter Asylum-seeker and Refugees)

Important

Deportation and Administrative Removals are a very complex area of immigration law. It is advisable to seek the help of an experienced immigration lawyer. Legalally has experienced and professional immigration lawyers. (Please refer to step 3)

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.