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Deportation - Part 2: Appeals and Judicial Review

In the first entry in this series of blogs, we clarified what deportation is, how deportation procedures can be engaged, and what the Secretary of State (via the Home Office) can do to enforce their decision to deport an individual. In this entry, we will be taking a closer look at what that individual (of EEA or non-EEA origin) can do to challenge such a decision.

Deportation – Pre-Appeal

It is important to note that, prior to lodging an appeal, an opportunity to challenge the decision should present itself. In light of updated Home Office guidance on the matter, Section 120 of the Nationality, Immigration and Asylum Act 2002 (or “NIAA”) requires the Secretary of State to serve a notice on the individual, inviting them to explain why they should not be deported from the UK.

It is fundamental to check whether the notice was responded to (and what was stated) before considering an appeal. Otherwise, as per subsections 85(5) and (6) of the NIAA and confirmed in the case of Mahmud [2017] UKUT 488, the Home Office may simply refuse to consent to an appeal raising matters not previously considered by them.

Lodging an Appeal – Article 8

Provided the above procedure has been complied with by both sides, but the decision to deport has been maintained, the individual may be able to appeal the decision. Provided they have made a human rights claim which was refused, an individual may be able to rely on Article 8 of the European Convention on Human Rights, which protects their right to a private and family life.

The fate of an Article 8 appeal depends on whether Immigration Rules 399 and 399A  are satisfied. These Rules, just two of hundreds regularly chopped and changed by the Secretary of State, set out precisely when an individual’s private and family life in the UK is of such substance that deportation cannot go ahead. The Rules can be read in full here.

Should Rule 399 or 399A not apply, the only other provision an individual could rely on can be found in Rules 390 and 390A.  However, the test here is much harder to satisfy; it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors” [emphasis added].

However, even if the individual succeeds in challenging the deportation decision, any hope they may have of returning to a life entirely undisturbed by the Home Office will be short-lived. Under Rule 399B and C, any Leave the individual had (including ILR) will be replaced with limited Leave for a period not exceeding 30 months, subject to such conditions as the Secretary of State considers appropriate.

Lodging an Appeal – Asylum/Humanitarian Protection

If circumstances in the individual’s country of origin have changed since they accrued their criminal convictions, there may be scope to appeal the decision to deport on asylum and/or humanitarian protection grounds.

If the individual has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if returned to their country of origin, an asylum claim should be made. If then refused, an appeal against that decision could then potentially be brought.

However, Section 72 of the NIAA states that if the individual concerned has committed an offence for which they received a custodial sentence or two years or more, they no longer attract protection under the Refugee Convention. In those circumstances, the Secretary of State may have already considered the issue before making the decision to deport.

If the individual is otherwise at real risk of serious harm on return to their country (harm not constituting persecution), EU law in the form of Council Directive 2004/83/EC, Art.2(e) may also apply. This law has been transposed into domestic law by inclusion in Immigration Rule 339C and CA (humanitarian protection). The individual should raise the issue with the Home Office, and, as above, if the claim is refused, an appeal could potentially be lodged. Once again however, this ground may have already been considered by the Secretary of State, as Section 72 referred to above applies.

In circumstances such as these, all that may be available to them is a claim under Article 3 of the European Convention, an absolute right prohibiting torture and inhuman or degrading treatment or punishment which can still be engaged in spite of convictions and prison sentences.

EEA Nationals

As the legal framework applicable to nationals of EEA countries is somewhat different, different considerations must be made as to the circumstances of their deportation.

As per Regulation 27 of the The Immigration (European Economic Area) Regulations 2016, an EEA national can be deported “on the grounds of public policy, public security or public health”. If that EEA national has the right of permanent residence in the UK, that test is made slightly stricter, and the Secretary of State can only deport on “serious grounds of public policy and public security”. A decision maker must also ensure their decision is in accordance with the principles found at 27(5) – (8) and Schedule 1 of the 2016 Regulations.

Unless exceptional circumstances apply, asylum claims made by EEA nationals are deemed inadmissible by the Home Office, as the “Spanish Protocol” of the EU states that all EU member states are prima facie considered safe countries to be returned to.

What’s more, by virtue of Regulation 33 of the 2016 Regulations, The Secretary of State may be in a position to remove the individual from the United Kingdom, even if their appeal has yet to be determined. They can do so if removal would not lead them to act contrary to Human Rights Convention, and the individual would not face a real risk of serious irreversible harm if removed to the country of return. A similar power (not covered in this blog post) exists in respect of non-EEA nationals.

Judicial Review

It does not necessarily follow that, after a decision to deport is maintained, an appeal can be lodged. Under S.94 and S.96 of the NIAA, if the Secretary of State considers the human rights, asylum or humanitarian protection claim is “clearly unfounded”, or the individual has raised a claim that relies on a matter he or she should have raised in a previous appeal or representation, they may “certify” the claim. If certified under S.94, no appeal can be brought in-country. If certified under S.96, the individual cannot bring an appeal at all.

Should the individual still wish to challenge the decision, they are left with just one option; judicial review, an entirely different legal process. To succeed in judicial review, the individual must persuade the judge of one of three possible realities;

i) the Secretary of State has acted in an unlawful manner in making the decision to deport,

ii) the decision was so unreasonable that no reasonable decision maker would have made it, or

iii) the Secretary of State failed to adhere to correct procedure in making the decision, and it is highly likely a substantially different outcome would have occurred if they had.

An application seeking  judicial review may also include an application for a prohibitory injunction, preventing the Secretary of State from deporting the individual from the UK until the judicial review has concluded.

Judicial review is a lengthy, complex and expensive process. For more information about judicial review, please refer to our blog post: “Judicial review in immigration law: The basics”.

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