Deportation order can be issued by the Home Office to anyone who is not a British citizen. Deportation is a very serious matter and immediate action must be taken, especially if you have already been detained and face removal from the UK.
If you or a member of your family is considered for deportation, it is important that you contact a specialist immigration solicitor as soon as possible. The expert immigration lawyers at ICS Legal will advise you on the law, Home Office policy, and appeal procedures.
If you are threatened with deportation, contact ICS Legal today to discuss your case. Call 020 7237 3388 or complete our online enquiry form and we will get in touch as soon as possible.
The legal framework on deportation order?
Framework Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 set out the correct approach to considering ECHR Article 8 claims.
Part 5A was inserted by section 19 of the Immigration Act 2014 which came into force on 28 July 2014. In Part 5A:
- section 117A sets out how the Article 8 provisions are to be applied;
- section 117B sets out Parliament’s view of the public interest in Article 8 claims made by any foreign nationals, including foreign criminals;
- section 117C sets out Parliament’s view of the public interest in Article 8 claims made by foreign criminals liable to deportation;
- section 117D sets out the interpretation of sections 117A to 117C.
The Immigration Rules were amended on 28 July 2014. Paragraph A362 sets out that any Article 8 claim considered on or after this date, regardless of when it was made, must be considered under the amended rules. Paragraph 398 of the Immigration Rules sets out the criminality thresholds.
An Article 8 claim from a foreign criminal who has not been sentenced to at least 4 years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at paragraph 399A.
Who can be Deported?
Foreign and European Union nationals normally considered for deportation from the UK when they commit a serious criminal offense. Members of your family may also be considered for deportation.
If the Secretary of State has decided that you or a member of your family should be deported, you will be given a right to appeal against the decision to the Immigration and Asylum Chamber of the Tribunals Service. Depending on the decision, a right to appeal can be generated from the UK or outside the UK.
Public interest arguments in line with the Immigration Act 2014
The Home Office have introduced a number of strict policies in line with the Immigration Act 2014 and their policy now sets out the public interest in Article 8 claims from foreign criminals in sections 117B and 117C of the 2002 act. Article 8 ECHR rights cannot be simply used without any credible grounds and it has become a useless exercise when this matter is not considered when approaching to challenge the decision of a deportation order.
Home Office will consider your private and/or family life and balanced against view of the public interest to determine whether deportation would breach Article 8. The Home Office will be tasked to consider your application with the specified evidences, in line with the public interest in deportation to determine whether it is outweighed by a foreign criminal’s private or family life when assessing whether:
- the effect of deportation on a qualifying partner or a qualifying child would be unduly harsh;
- a foreign criminal is socially and culturally integrated in the UK;
- there are very compelling circumstances over and above the circumstances described in the exceptions to deportation.
Case laws in relation to the decision letter served by the Home Office
Home Office caseworkers have been advised that any decisions to deport someone from the UK, should not make decisions on the basis of case law established before commencement of section 19 of the Immigration Act 2014 (28 July 2014) or refer to such case law in decision letters.
Caseworkers when deciding on an application must be taken solely on the basis of the Immigration Rules, which part 5A of the 2002 act underpins. The courts will develop new case law in relation to the public interest statements. Where a case is decided outside the Immigration Rules (for instance where the foreign criminal is an EEA national or deportation is pursued solely because of one or more overseas conviction), the decision must not refer to case law, and must explain that the Immigration Rules have guided the consideration because they reflect Home Office’s view of the balance to be struck between an individual’s right to private and family life and the public interest.
In cases where either of the following applies:
- the decision has been certified as clearly unfounded under section 94(1A) or section 94(2) of the 2002 act on the basis that the person is entitled to reside in a State listed at section 94(4) (designated states) or on a case by case basis;
- it has been decided that further submissions do not amount to a fresh claim under paragraph 353 of the Immigration Rules you do not, as of 28 July 2014, need to include a separate consideration of Article 8 case law in the decision letter.
Hesham Ali (Iraq) v SSHD  UKSC 60
The most relevant case law which sets out the consideration by the Home Office is set out in the case of Hesham Ali (Iraq) v SSHD  UKSC 60 whereby the Supreme Court effectively approved the provisions in the Immigration Rules concerning the approach to be taken to the consideration of Article 8 in the context of the deportation of foreign criminals (paragraphs 396 – 399A). The court apparently agreed that those rules are consistent with the requirements of Article 8.
It obviously supports the view of the Home Office, which places a lot of burden on the decision maker as well as that of the Tribunal or Courts when deciding whether the decision was correctly followed and applied under the Immigration Rules HC395. The court concluded that the rules do not constitute a ‘complete code’ in deportation cases, insofar as they cannot be said to be binding on judges in tribunals. It is for the appellate judge to determine, on the facts of the case, whether deportation in a particular case would be disproportionate. However, the Supreme court made clear that the rules must remain central to that assessment.
The Home Office policy guidance has now given statutory effect to her assessment of the ‘public interest question’ in this context, by way of the provisions contained in sections 117B and C of the 2002 act (as amended by the Immigration Act 2014). These provisions were not considered in Hesham Ali. When considering the public interest in deportation, Lord Wilson considered Lord Kerr’s view (given in the latter’s dissenting judgment) that if an individual is unlikely to commit a further crime or be involved in further disorder, then their expulsion cannot be said to be rationally connected to the legitimate aim of the prevention of disorder or crime. Lord Wilson found this analysis too narrow, concluding that the deterrent effect on foreign citizens of understanding that a serious offence is likely to lead to deportation may be a more powerful aid to the prevention of crime than the removal of one foreign criminal judged as likely to re-offend. The court concluded that the weight to be attached to the public interest in the deportation of a foreign criminal is such that only an Article 8 claim that is: “very strong indeed – very compelling” will be capable of outweighing it.
Can the individual facing deportation appeal against the decision?
If you have been served with a deportation order, you should seek legal or immigration advice immediately. For people who are the subject of deportation action there is a right of appeal from within the UK against the decision to make a deportation order (not the actual making of it) under section 82(2)(j) Nationality, Immigration and Asylum Act 2002. The order cannot be formally made while any appeal under this section is pending, nor can the individual be removed from the UK.
When a deportation order has already been made against a person, they may apply to have the order revoked. If that application for revocation is refused, they can then appeal against that refusal under section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002.
As the individual will ordinarily have been removed pursuant to the order, applications to revoke a deportation order will usually be made from outside the UK, and the right of appeal against a refusal to revoke can ordinarily only be brought from overseas.
Although you may not qualify for leave to remain in the UK, it may in some circumstances be possible to make representations to UKBA against your deportation on compassionate grounds, such as human rights. For example, if you have been living in the UK for many years and fear that you may be subjected to persecution if you are deported. Indeed, a deportation order should not be made against an individual if doing so would lead to a breach of the UK’s duties under the European conventions on human rights and/or refugees.
What about family members of an individual facing deportation?
The family members of an immigrant facing deportation may also be deported too; however, there are some circumstances in which they may avoid deportation. These include:
- if the spouse or civil partner of the individual being deported have qualified to live in the UK themselves (and not just as the spouse or partner of the individual being deported); or
- if they live apart from them.
The children of a foreign national facing deportation may avoid deportation if they are living separately with another parent, if they live alone and support themselves, or if they got married or entered into a civil partnership before the question of deportation arose.
ICS Legal are able to provide legal advice and guidance throughout the course of your deportation appeal. Cases are often complex, and it is important that detailed preparation is carried out. We may need to instruct an expert witness to provide the Tribunal with an assessment of your case.
Our immigration lawyers are available to visit you in prison or at a detention center, providing advice on the appeals process and safeguarding your rights as a Foreign National Prisoner.
Contact a Deportation Appeals Solicitor
If you have received correspondence from the Home Office, it is important that you act quickly. Contact the immigration law experts at ICS Legal on 020 7237 3388 or complete our enquiry form.
Cancelling a deportation order
If either your appeal is dismissed or you have decided against challenging the deportation order, an application can be made to request this to be revoked. The Home Office based on your legal letter including any evidences you wish to rely upon would be considered and a decision letter would be served. This will confirm that revocation of the Deportation Order in itself gives no entitlement to entry to the UK.
Right to appeal being generated automatically depends on a number of circumstances. Until recently, Section 82(k) of the Nationality, Immigration and Asylum Act 2002 provided that a decision to refuse to revoke a Deportation Order attracted a right of appeal. However any decision to refuse to revoke made on or after 10 November 2014 is subject to Section 82 as amended by the Immigration Act 2014. This means that:
- Any decision to refuse to revoke a deportation order, where the person has already been deported, made prior to 10 November 2014 will attract a right of appeal.
- Any decision to refuse to revoke a deportation order made on or after 10 November 2014 will not attract a right of appeal unless there is also an associated decision to refuse a protection claim, refuse a human rights claim or revoke protection status. Where the person has already been deported, only a decision to revoke a non-protection human rights claim will be relevant.
ICS Legal will advise you on the next legal process if there is no automatic right to appeal. We will also advise the correct approach and whether there are any legal merits to the application being made.