Deportation Orders & Removal Orders
A deportation order requires a person(s) to leave the United Kingdom and authorise his or her detention until he or she are removed by a ‘notice for deportation’. It also prohibits that person from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom.
The Criteria for a UK Deportation Order
A foreign national may be made the subject of a deportation order for a number of reasons. These include:
- The Secretary of State believes that is in the interests of the public good that the foreign national is removed from the UK;
- The foreign national is the spouse, civil partner or child of an individual who is the subject of a deportation order; or (see deportation of family members/family consideration); or
- The foreign national is over 17 years old, has been convicted of a criminal offence which carries with it a prison sentence and the court which sentenced the foreign national recommended that he be deported once he has served his sentence.
The Grounds for granting a UK Deportation Order
1. Deportation after a Criminal Conviction (Removal On The Grounds Of Public Interest)
If a foreign national is convicted of a criminal offence the court may grant a deportation order against them. The more serious the offence, the more likely a judge is to recommend that the person will be deported. Whether or not a judge recommends deportation, when a foreign national is approaching the end of their sentence the Prison Service should notify the immigration authorities of his impending release. This should be done sufficiently far in advance so that preparations for deportation can be commenced in good time. The court will consider the following matters before deporting a person;
- the nature of the offence;
- the circumstances of the commission of the offence;
- the view of the offence expressed by the court before which the offender appeared;
- the nature of the penalty;
- the extent of rehabilitation of the offender;
- the prospects of recidivism (repeated criminal offences);
- the necessity to prevent or inhibit the commission of like offences by other persons;
- the previous criminal history of the offender;
- the public interest; and
- the circumstances of the family or of other persons having a relationship with the offender;
In cases where no recommendation for deportation was made by the sentencing judge a foreign national should be considered for deportation if he received a prison sentence of longer than one year, or two years in the case of a European citizen. In deciding whether a foreign national should be deported after he has served his sentence the immigration authorities will take into account the offender’s age, his links to the UK and the seriousness of his offence.
2. Deportation of Family Members
Section 5 of the Immigration Act 1971 gives the Secretary of State power in certain circumstances to make a deportation order against the spouse, civil partner or child of a person against whom a deportation order has been made. The Secretary of State will not normally decide to deport the spouse or civil partner of a deportee where; they are a qualified for settlement in his own right; or been living apart from the deportee. The Secretary of State will not normally decide to deport the child of a deportee where:
- The child and his mother or father are living apart from the deportee;
- The child has left home and established himself on an independent basis;
- The child is married or formed a civil partnership before deportation came into prospect.
The Process of UK Deportation
Where the Secretary of State decides that it would be appropriate to deport a member of a family as such, the decision, and the right of appeal, will be notified and it will at the same time be explained that it is open to the member of the family to leave the country voluntarily if he does not wish to appeal or if he appeals and his appeal is dismissed.
When a decision to make a deportation order has been taken (otherwise than on the recommendation of a court) a notice will be given to the person concerned informing him of the decision and of his right of appeal.
How Can You Challenge A UK Deportation Order?
The process of deportation is justified on the basis that it is for the public good and that this should outweigh the interest of the individual in question – unless the deportation breaches that individuals rights under the Human Rights Act 1998. Deportation can be challenged if it is contrary to the United Kingdom’s obligations under the Refugee Convention or ECHR. Regard may also be had to other relevant factors which constitute exceptional circumstances. There are two fundamental rights which could be breached when a deportation order is granted are the following Article 3 Human Rights Act 1998 which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment and/or article 8 Human Rights Act 1998 which states the following everyone has the right to respect for his private and family life, his home and his correspondence and no public authority can interfere with the exercise of that right.
Our specialist immigration lawyers can make an application for the revocation of a deportation order on the basis, inter alia, that one or both of these fundamental rights have been breached as a result of a deportation order being granted against you. Moreover, the deportation order will be considered in the light of all circumstances including the grounds on which the order was made, any representation made in support of revocation, the interest of the applicant including any compassion circumstances such as serious health grounds.
The Right to Appeal against your UK Deportation Order
There may be a right of appeal against refusal to revoke a deportation order. Where an appeal does lie, the right of appeal will be notified at the same time as the decision to refuse to revoke the order. If a notice of appeal is given within the period allowed, a summary of the facts of the case on the basis of which the decision was taken will be sent to the appropriate appellate authorities, who will notify the appellant of the arrangements for the appeal to be heard.
What are Removal Orders, and how do they differ from Deportation Orders?
Unlike deportation orders, removal orders would be used if you or your family do not have leave to remain in the UK whether you came to the UK without obtaining leave prior to your entry or your existing leave has expired. You may also be removed if you had leave to stay but only on certain conditions, and you have not kept to the conditions. For example, if the person did not have permission to work and you did or if you claimed asylum, but your claim and any appeals you made were refused. The circumstances in which a person becomes liable to a removal order are overstayed their visas, entered the UK illegally or by deception; or failed to observe conditions attached to their leave
Before a decision to seek a removal order is considered regard is had to all the relevant factors known to the Secretary of State including:
- Length of residence in the United Kingdom;
- Strength of connections with the United Kingdom;
- Personal history, including character, conduct and employment record;
- Domestic circumstances;
- Previous criminal record and the nature of any offence of which the person has been convicted;
- Compassionate circumstances; and
- Any representations received on the person’s behalf.
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