Deportation & Removal
The Immigration Act 1971, as amended, sets out the powers of detention on the part of the Secretary of State. This covers agencies acting under the authority of the Secretary of State,formerly, the UK Border Authority, now Border Force. A person who is subject to deportation may be detained for the purpose of deportation.
A person detained on arrival in the UK, pending examination of their case, may be detained without eligibility for bail for up to seven days. Persons who are detained on the basis of having entered illegally or issued with a notice of administrative removal may apply for bail at any point. They need not have exercised the right to appeal.
Persons who are detained pending deportation may apply for bail without having appealed. An application for bail may be made to an immigration officer, Chief Immigration Officer for bail, or the Immigration Tribunal for bail. If the above routes have been exhausted, a person may apply to the High Court by judicial review or habeas corpus to the Administrative Court of the High Court.
Under the Immigration and Asylum Act 1999, as amended, a person may be removed by administrative removal procedure on the direction of an immigration officer. This may be done if, having been given limited leave to enter or remain,
- they do not observe the conditions (typically staying beyond the expiry date).
- They engage in deception in seeking to obtain leave to remain.
- They belong to the family of a person who has been directed to be removed.
Administrative removal is now the main mechanism for the deportation of persons subject to immigration control.
Persons who may be detained for administrative removal include those arriving pending examination of the case by an immigration officer to verify whether they need or should be granted leave to enter the UK. Those who have entered the UK by leave prior to their arrival, and this leave has been suspended pending examination by an immigration officer.
Those who have been refused leave to enter, if there are reasonable grounds for suspecting that they are persons in respect of whom removal directions may be given. Illegal entrants are those reasonably suspected of being illegal entrants pending a decision whether to issue removal directions.
Those with limited leave to enter or remain in the UK who fail to observe conditions or remain beyond their leave. Certain members of the crew of aircraft or ships who remain beyond leave or abscond having unlawfully entered without leave or are reasonably suspected of doing so.
Deportation procedures are used still in that case as follows: where the Secretary of State determines the person should be excluded on grounds of public good; where a criminal court recommends deportation as part of a sentence; a spouse or civil partner or a child under 18 of a person ordered to be deported.
A deportation order requires a person to leave the UK and authorises immigration detention until removal. It prohibits a person reentering the UK while it is in force. It overrides existing leave they may have.
Deportation proceedings may be commenced by the Secretary of State or in criminal proceedings. Where a person has been convicted of a criminal offence, the Home Office may take criminal proceedings, deportation proceedings even if the court does not recommend deportation. An EEA national may be deported subject to stringent procedures.
The UK Borders Act 2007 provides that persons who are not British citizens who have been convicted of certain specified criminal offences for which they may be sentenced to a period of imprisonment of at least 12 months can be automatically deported by the Secretary of State.
There are certain exceptions to automatic removal. Where removal would breach the European Convention and human rights, rights or obligations under the Refugee Convention; where a person is under 18 at the date of conviction; where it would breach EEA (EU plus former EFTA country’s rights); where extradition provisions apply; where a person is mentally disordered, either under civil or criminal proceedings; where the person is a victim of human trafficking under the anti-human trafficking legislation.
An individual is exempted from deportation, where they enjoy rights under this Section 7 and 8 of the Immigration Act 1971. This includes certain Commonwealth citizens, Irish citizens, those with rights of abode, crew and certain other persons exempted. The UK Borders Act does not apply to British citizens unless citizenship is revoked. This cannot apply to a person acquiring citizenship by birth.
The deportation of a foreign criminal must be conducive to the public good. The UK uses removal centres for persons who are temporarily detained pending administrative removal or deportation.
A decision to deport is the subject of an appeal to the Asylum and Immigration Tribunal. A person may remain in the UK while the appeal is pending. A recommendation for deportation can be appealed to the Criminal Appeal Court and must be so appealed. It is a part of an appeal against sentence.
A deportation order may not be served until the time to launch an appeal has expired.
Persons who overstay permitted leave must apply for an extension of leave within 28 days of the expiry of limited leave. Where a person overstays leave by more than 28 days, the application for further leave is refused.
Breach of the condition of leave or overstaying is an offence. It is punishable by imprisonment for up to six months or a fine. The offence is committed when a person overstays when they know that the leave to enter or remain has expired, and the offence continues while they remain in the UK or until their position is regularised.
A person who is overstaying is in breach of immigration laws and does not satisfy the residence requirement required for naturalisation. A person who is not a British citizen may be removed in accordance with directions by an immigration officer if they fail to observe a condition attaching to leave or remain beyond the time or they have deception in obtaining an application to leave or belong to a family member of a person in respect of whom direction for administrative removal has been given.
An illegal entrant is one who enters the UK unlawfully or enters by deception or breach of a deportation order or immigration law. Illegal entry may take place through a common travel area entry, including through the Republic of Ireland, Isle of Man and Channel Islands.
Entry through deception is an offence subject to imprisonment for up to two years, on indictment.
See above in relation to the powers of the authority to remove an illegal immigrant.
A private company, Capita, was appointed in October 2012 to track down overstayers and illegal entrants for deportation. Capita corresponds with and visits overstayers, including those on the migrant refusal pool of persons who have been refused leave to remain.
The Home Office’s guidance on overstayers covers persons, visitors, long residents, UK ancestry, most discharged forces members, work and study based.
Applicants applying for leave must have remained no longer than 28 days after the expiry of the original leave period. The immigration officer considers exceptional circumstances that stopped the application within 28 days. ]
This may include serious illness, travel delays, exceptional and avoidable circumstances, administrative loss of documents, objective reasons for the loss of documents. If the above apply, leave is likely to be granted for the same duration as the normal grant of leave.
Applicants without valid leave when they submit their application continue to be overstayers while the application is pending. Persons may qualify to regularise their stay. Family and private life category. An application may be made on the basis that the right to private or family life in the UK is breached by removal.
A family member of an EEA national exercising treating rights; Asylum, humanitarian protection, discretionary leave; human rights protection; may be available to a failed immigration or asylum applicant; right of appeal.
If an application for visa entry clearance, asylum or human rights is refused by the Home Office or the agency, the applicant may be entitled to appeal from outside the UK or at the UK border, depending on whether or not full or limited appeal rights apply. Supplemental material in this article and the next.