Deportation is described as the forced removal of a non-excluded person from the UK. A person is excluded from deportation if they are a British citizen (in law) or have right of abode [i] or are a Commonwealth citizen who was ordinarily resident in the UK on the 1st of January 1973 and has lived in the UK continuously for 5 years prior to the offence or deportation decision. Deportation is split into two types: automatic deportation – applied when a non-excluded person is given a criminal sentence in the UK of over 12 months imprisonment and non-automatic deportation – applied when automatic deportation does not apply and the Secretary of State considers that the person’s continued presence in the UK is not conducive to the public good.
The introduction of automatic deportation limits the use of the court’s power to recommend deportation. Where a person is sentenced to more than 12 months, deportation will take place after the sentence has been served. However, where a person is sentenced to less than 12 months, deportation will only take place after the sentence has been served if it is decided that it is conducive to the public good to deport.
Administrative removal occurs when a person has no leave to remain in the UK and the leave to remain application has been refused, then the person will be removed from the UK.
In deportation cases, a notice of decision to deport is served and a deportation order will be issued. In administrative removal, removal directions are issued followed by a removal notice stating the date and details of removal.
The appeals system changed radically when the Immigration Act 2014 commenced. The purpose of an appeal is different depending on whether the decision is a Borders Act decision or an Immigration Act decision.
Foreign criminals[ii] and their family members who receive a decision after 20th October 2014 will no longer have a right to appeal against a deportation or request administrative review. However, if you have a genuine protection or human rights claim, we may be able to help.
It is difficult to re-enter the UK after a deportation. If the person’s criminal sentence was 4 years or less, a deportation order will not normally be considered if an application for revocation is made before 10 years have elapsed. This is known as the exclusion period. If the person was sentenced to a period of imprisonment of at least 4 years, the deportation order will continue unless the continuation will breach the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances.
[i] A person who is free from immigration control. All British citizens have right of abode. The following also have right of abode: (a) commonwealth citizens born before 1 Jan 1983 who had a parent born in the UK where the father must have been married to the mother. (b) women who were commonwealth citizens before 1 Jan 1983 and married before that date to a man born, registered or naturalised in the UK or who is a commonwealth citizen with parent born in the UK.
[ii] A foreign criminal is a person who is not a British citizen and who has been convicted in the UK of an offence, and who (a) has been sentenced to a period of imprisonment of at least 12 months or (b) has been convicted of an offence that has caused serious harm or (c) is a persistent offender.