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Deportation - Part 1: An Overview

In ensuring the myriad of laws, rules and policies that make up the UK’s immigration system have bite, the Secretary of State is afforded the power to remove foreign nationals to their countries of origin. One method of removal used is known as deportation.

What is Deportation?

Contrary to popular belief, deportation does not refer to any situation in which a foreign national is required to leave the UK. Rather, deportation procedures are used when a foreign national must leave in order to protect the public, usually (but not necessarily) following their conviction for one or a string of sufficiently serious criminal offences. Any leave they may have is invalidated once the decision to deport is taken. The powers are used more frequently than one might think – in 2017, 5,835 foreign national offenders were removed from the UK, two-thirds of which were EU nationals.

These conditions set deportation apart from administrative removals, which do not require any element of criminality to operate. Rather, administrative removals take place when a foreign national no longer has (or never had) valid Leave to Remain in the UK or, in the case of an EEA national, has stopped exercising their Treaty rights.  Deportation is also distinct from extradition, which is, broadly speaking, engaged when a foreign national is required to return to their country of origin to face trial, or sentencing for a criminal offence committed there.

Automatic Deportation

When a foreign national’s conduct engages legislation compelling the Secretary of State to order their deportation, this is known as an “automatic” deportation. However, deportation can also be commenced at the Secretary of State’s discretion, in the wake of alleged or actual conduct they deem a danger to the public. The conditions in which automatic or discretionary deportation apply are different, and understanding when one or the other applies is important.

S.32 of the UK Borders Act 2007 sets out when, following a foreign national’s conviction of a criminal offence, automatic deportation procedures are engaged. In simple terms, if their conviction results in a prison sentence of at least 12 months, the Secretary of State must order that individual’s deportation from the UK under S.32(5). They will notify the parties involved by issuing a Deportation Order.

What’s more, under S.72(4)(a) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State can order that a particular offence, whenever committed, makes an individual a danger to the community of the United Kingdom. Then, if a foreign national is convicted of this particular offence, regardless of the length of their prison sentence, S.32 applies, and the Secretary of State must issue a deportation order.

Discretionary Deportation

The Secretary of State’s discretionary power to deport foreign nationals is sourced from the Immigration Act 1971. This power can be invoked if, by virtue of S.3(5)(a) of the Act, the Secretary or State “deems his deportation to be conducive to the public good”. Additionally, under S.3(6) of the Act, following the conviction of the foreign national and a sentence of imprisonment, a criminal court can recommend their deportation.

The power under S.3(5)(a) is therefore broader in scope, as a foreign national need not necessarily receive a prison sentence of at least 12 months in order to become liable to deportation. Additionally, the term “conducive to the public good” can be interpreted broadly, meaning unlike S.32 described above, conduct that does not lead to a criminal conviction could hypothetically be used by the Secretary of State to justify deportation.

As the discretionary power to deport inherently requires a case-by-case assessment, the Secretary of State must first notify the foreign national that they are considering their deportation, by serving what is known as a Notice of Intention to Deport. This notice usually invites the foreign national to make representations as to why they should not be deported. If representations are not made, or the Secretary of State is not satisfied that the arguments raised are compelling, then a Deportation Order usually follows.

Irrespective of whether the deportation is an automatic or discretionary one, the Deportation Order will be accompanied by a letter setting out the Secretary of State’s reasons for making the Order.

Enforcement – Removal Windows and Directions

The Secretary of State wields the power to physically deport foreign nationals from the UK (generally by putting them on a flight) under Paragraph 1, Schedule 3 of the Immigration Act 1971. The foreign national is notified that they will be removed with a Notice of Removal, which usually accompanies their Deportation Order. These Notices can be modified to suit the circumstances, but generally come in two forms, imposing Removal Windows or Removal Directions.

As per Page 27 of the Home Office Guidance on Arranging Removal, Removal Windows run for a maximum of three months, during which time the foreign national can be removed at any time without further notice. Given that removal can take place at any time after a Window opens, should the foreign national seek to challenge their deportation, time is moreso of the essence.

Removal Directions differ in that they provide the foreign national with the exact date and time they will be removed from the UK, and the details of their flight. As required by page 11 of the above guidance,  those being removed must be given adequate notice that removal has been scheduled, and, where they are detained, notice should ideally be given as soon as removal directions have been set.

Once a foreign national has been removed from the UK, they will be banned from re-entering for a period of time reflective of the seriousness of their offending. As per Rule 391 of the Immigration Rules, if a foreign national receives a prison sentence of less than four years, they will be banned from re-entering the UK for ten years following the making of the deportation order. If the sentence was longer than four years, the ban applies indefinitely.

In the next blog in the Deportation series, we will be taking a closer look at how to challenge Deportation Orders by way of appeal and judicial review, and the process of revoking Orders once they have been executed.

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