Domestic Deportation Framework: Key Provisions & Considerations
In This Article
1. Understanding the Domestic Deportation Framework: An Overview
2. Deportation Under the Immigration Act 1971: Exemptions and Conditions
3. The Evolution of Deportation Law: From Discretion to Duty
4. Foreign Criminals in Deportation Law: Definitions and Criteria
5. Domestic Deportation Framework: Exceptions for Medium and Serious Offenders
6. Contact Our Immigration Barristers
7. Frequently Asked Questions
8. Glossary
1. Understanding the Domestic Deportation Framework: An Overview
This series of articles will examine the domestic deportation framework that governs the deportation of non-British nationals convicted of criminal offences in the UK.
There are two legislative frameworks that can apply, deportation under EEA regulations and deportation under domestic legislation. This series focussed on deportation under the domestic deportation framework and this article will address the structure of the framework.
The domestic deportation framework applies to most non-British and non-EEA nationals who have committed a crime. It also applies to those protected by the Withdrawal Agreement (mostly EEA citizens who have been in the UK since at least 2020) convicted of crimes which took place after 11pm GMT on 31 December 2020 (i.e. after the end of the transition period).
2. Deportation Under the Immigration Act 1971: Exemptions and Conditions
By virtue of the Immigration Act 1971 section 3(5) most non-British nationals are liable to deportation under the domestic deportation framework if the Home Secretary deems their presence to be non-conducive to the public good. Individuals who meet all of the following three conditions are exempt from deportation:
- the person was a Commonwealth or Irish citizen when the 1971 Act came into force on 01 January 1973;
- the person was ordinarily resident in the UK on 01 January 1973;
- the person was ordinarily resident in the UK for at least 5 years before the decision to make a deportation order is made.
It is important to note at the outset that being eligible for British citizenship (or having been entitled to it under the old law) is not sufficient to protect against deportation unless citizenship has actually been obtained, although it may be a relevant factor in the overall assessment under the framework: Akinyemi v The Secretary Of State For The Home Department [2017] EWCA Civ 236. The other side of the same coin is that possession of British citizenship is an absolute protection against deportation. See our other articles on naturalisation and registration for how to obtain British citizenship.
3. The Evolution of Deportation Law: From Discretion to Duty
The 1971 Act originally envisaged deportation to be based on the Secretary of State’s discretion or at the recommendation of a court. The latter were made redundant by the implementation of the UK Borders Act 2007, section 32 of which provides for automatic deportation when a non-British national is convicted of an offence and sentenced to a period of imprisonment for 12 months or more. In effect, it transformed the power to order deportation into a duty, unless the exceptions out in section 33 of the same Act apply.
Section 33(3) provides that automatic deportation does not apply to offenders who were under the age of 18 at the date of conviction. The UK also has a policy not to deport Irish citizens unless there are exceptional circumstances. For the purposes of this article, the most significant exception is set out in section 33(2)(a), namely where the order would breach the individual’s Convention rights under the ECHR. This reflects the obligation on public authorities, such as the Home Office, to not act in a manner which is incompatible with a Convention right (as enshrined in section 6(1) of the Human Rights Act 1998).
The Convention right most frequently relied upon to resist deportation is Article 8, which protects the right to private and family life. It reads as follows:
Article 8
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 8 is a qualified right, meaning that it may be infringed when it is deemed necessary in the interests of society for the reasons set out above. In an immigration context, interference through deportation may be justified on grounds of public safety. The question at the heart of any appeal based on this right is therefore whether this interference is justified under Article 8, “the public interest question”. This entails a balancing exercise between an individual and their family’s rights under Article 8 and the public interest in violating those rights, to decide whether the interference is proportionate.
In July 2012, then Home Secretary, Theresa May introduced changes to the Immigration Rules by the Statement of Changes HC194 in an attempt to guide the determination of that balancing exercise through the Rules themselves. These provisions have been modified since their introduction but they instituted the basic framework that applies today (and is now set out in Part 13 of the Immigration Rules).
The relevant provisions concerning deportation were set out in paragraphs 398-399A. At their introduction Mrs May told Parliament:
“The problem is that Parliament has never before been given the opportunity to set out how it believes it should be possible to interfere with Article 8 rights in practice. That meant the courts were left to decide the proportionality of interference with Article 8 rights themselves, in each and every individual case, and without the benefit of the views of Parliament. We are putting that situation right. We are letting Parliament do its job by making public policy, and we are letting the courts do their job by interpreting the law, with regard to the clear view of Parliament of where the public interest lies.”
Despite these changes, the Government believed that too many immigration appeals, particularly appeals against deportation orders, were being allowed on an overly generous interpretation of Article 8 which did not reflect the public interest as set out in the Rules. Primary legislation carries more weight than the Rules because it represents the view of Parliament, the highest democratic and constitutional authority, whereas the Rules reflect the Secretary of State’s policy (see further guidance in our article UK Immigration Rules: A Comprehensive Guide 2025). The Government therefore acted to bring the Rules onto a statutory footing, through section 19 of the Immigration Act 2014, which inserted Part 5A, sections 117A-D, into the Nationality, Immigration and Asylum Act 2002.
As set out in section 117A, Part 5A applies to all immigration decisions where a court or tribunal must determine whether a decision made under the Immigration Acts breaches a person’s rights under Article 8 and is consequently unlawful under section 6 of the Human Rights Act 1998. Section 117B purportedly sets out considerations which the tribunal must have regard to in all such cases, while section 117C, supplemented by the interpretive provisions of section 117D, sets out specific considerations which apply in deportation proceedings and mirrored paragraphs 398-399A of the Immigration Rules as they then were.
The intent is clear from the first provision:
“117C(1) The deportation of foreign criminals is in the public interest.”
Section 117C sets out Parliament’s view of how the public interest question is to be answered, i.e. when it is in the public interest that an individual be deported. It provides a structure for how the courts should consider deportation proceedings and was intended to provide more consistency, predictability and fewer successful appeals. However, Judges have frequently lamented the poor drafting of Part 5A of the 2002 Act, which has required a great deal of judicial exposition. We see below, for example, how Section 117B is not relevant to certain deportation decisions.
4. Foreign Criminals in Deportation Law: Definitions and Criteria
Section 117D of the Act defines “foreign criminals” within the domestic deportation framework as non-British nationals who have been convicted of an offence and to whom one of the following applies:
- they have been sentenced to a custodial term of at least 12 months;
- their offence caused serious harm;
- they are a persistent offender.
Persistent Offenders
The meaning of persistent offender is discussed exhaustively in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC), particularly §50-54. In short it is an individual who “keeps on breaking the law”. It requires an evaluative judgement in light of the particular facts of the case. That judgement is a matter for the Secretary of State, at the time of the making of a deportation order, and for the tribunal in an appeal, and will be informed by the following factors:
- the number of offences committed;
- when the offences were committed;
- the pattern and nature of offending including the seriousness and frequency of offending and whether there has been any escalation in the seriousness of the offending;
- how recently the last offence took place;
- whether the person has engaged in any programmes aimed at addressing the cause of their offending (and no further offending has occurred since then).
Serious Harm
Serious harm is not defined by the legislation or Part 13 of the Immigration Rules but is discussed in R (on the application of Mahmood) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2020] EWCA Civ 717 [§36-45]. It may take the form of physical, psychological, emotional or economic harm to a victim, victims or society in general.
The harm must have been caused by the particular offence, such that shoplifting will not be considered to have caused serious harm even if it might be viewed as an instance of offending whose prevalence causes serious harm to society. Convictions for attempted offences will not in this context be judged to have caused serious through intention or potential harm alone, though offenders convicted of serious attempt offences will likely be sentenced to 12 months or more and therefore meet the definition of foreign criminal.
According to the Home Office’s guidance, violent, sex or drug offences will usually be considered to have caused serious harm. As above, the assessment of serious harm is a matter for the Secretary of State, at the time of the making of a deportation order, and for the tribunal in an appeal.
Custodial Sentences
Section 117C distinguishes between those who have been convicted of an offence and sentenced to a custodial term of at least 12 months but less than 4 years and those sentenced to imprisonment for four years or more. Following Jackson LJ’s judgment in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, the former have come to be known as “medium offenders”, and the latter “serious offenders”.
Persistent offenders and those judged to have caused serious harm who have not been sentenced to a term of imprisonment of at least 12 months are also considered medium offenders for the purposes of section 117C.
It should be noted that suspended sentences are not counted, as they are not terms of imprisonment, unless activated. As such, someone sentenced to a 2 year custodial term which is suspended for 2 years will not be liable to automatic deportation. The Act applies to individual offences, thus if someone is convicted of multiple offences and sentenced to serve custodial sentences which total 12 months or more but none of those sentences are themselves at least 12 months, they will not be liable for automatic deportation, unless they are deemed to be a persistent offender or to have caused serious harm.
5. Domestic Deportation Framework: Exceptions for Medium and Serious Offenders
In the case of a medium offender, the Act determines that deportation is required, unless they can show that either Exception 1 (the private life exception) or Exception 2 (the family life exception) applies.
Serious offenders (i.e. those with custodial sentences of 4 years or more) cannot avail themselves of the private and family life exceptions and may only avoid deportation if they can show that there are “very compelling circumstances over and above those described in Exceptions 1 and 2”, such that deportation would be a disproportionate interference in the appellant’s (and/or their family’) Article 8 rights. This requires a full proportionality assessment, weighing all the factors in favour of the appellant’s deportation against all the factors supporting their appeal.
The courts have since corrected the drafting error in the Act so that medium offenders may also rely on very compelling circumstances to avoid deportation: NA (Pakistan) [§24-25]. As Jackson LJ’s judgment makes clear, this intervention reflected the updated Immigration Rules and corrected the unfairness that gave serious offenders a route to avoid deportation that was not open to medium offenders.
The operation of each of these avenues to avoid deportation will be addressed in future articles.
6. Contact Our Immigration Barristers
Successfully challenging a deportation order is difficult and requires careful evidence gathering and precise legal arguments tailored to the particular facts of the case.
For expert advice throughout the appeal process, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
