Deportation Procedures

The Home Secretary [Minister for Justice] has powers to make ministerial deportation orders. A deportation order requires a person to leave the UK and prohibits re-entry. It cancels leave to enter or remain. British citizens with a right of abode in the UK cannot be deported. Some Commonwealth and Irish citizens may not be deported. This applies to those who have citizenship on 1 January 1973.

The Home Secretary may deport on the basis that it deems it to be conducive to the public good, the person is a member of the family of the deportee or a court has recommended deportation in the case of a person aged over 17 on conviction for an offence punishable with imprisonment.

There is a presumption that if a person is liable to be deported, the public interest requires deportation. However, if this would be contrary to the European Convention of Human Rights or the Refugee Convention, then deportation may not occur.

A person is considered for deportation in their own right if aged between 16 and 65. Outside of those ages, compassion considerations may arise. A person will be considered for deportation of their own right if their period of stay is less than 14 years. Deportation may take place where residence is longer than 14 years, where other detrimental factors arise.

The strength of connections and family ties to the UK, including family and employment interest, personal history, character, conduct, and employment record, are relevant.

Part of the strength of connections includes consideration of physical, domestic circumstances such as housing, whether third parties rely on them for support, physically or emotionally. Previous unspent convictions will be considered, and the seriousness of the offence will be taken into account. Other compelling and compassionate grounds may arise.

Deportation may interfere with private and family life. It may be a disproportionate response, which may be inconsistent with the Human Rights Act. This may be inconsistent with various Human Rights Act rights.

The position in respect of family members can be more acute. Where the family member has settled status, the human rights issues become more acute. Where a spouse is being deported, the other spouse and children under 18 can be deported as family members. This must be done within eight weeks.

Children who are British citizens may be expected to leave with parents who are deported. In this case, British citizenship may not be sufficient, would not be sufficient grounds.

Common laws on Irish citizens who qualified as such on 1 January 1973 and were ordinarily resident for the past five years are exempt from deportation if they have been resident in the UK and Islands for the last five years.

The Home Office takes the initial decision to deport and gives notice. The subject of the proposed decision may exercise rights of appeal. If they do not appeal, the Home Secretary may issue a deportation order of the deportee. They may be removed to a country of which they are a national or another country, which is likely to receive them. They may be detained pending deportation.

In the case of a deportation following a court removal recommendation, no deportation order is made until rights of appeal against conviction and sentence have ended. The order is normally made on sentencing.

A person subject to deportation may be allowed to leave by supervised departure without a deportation order, where they voluntarily agree to leave and sign and waive appeal rights. A person subject to enforcement, who makes a voluntary or supervised departure, is not debarred from reentering the UK subject to compliance with immigration rules.

Administrative removal is separate from deportation. The most commonly used ground is that the person has remained beyond their permitted day or broken conditions attaching to their permission to enter, leave to enter.

The breach should be recent, and there should be clear evidence. It is an offence to knowingly overstay or fail to observe a condition of leave.

An illegal entrant may be subject to administrative removal. A person who enters the UK in breach of a deportation order or without leave commits an offence. Similarly, if they obtain leave on the production of false documents, this is the case irrespective of whether they commit an offence, for example, where they do not know the documents to be false.

A person is an illegal entrant if they obtain leave by deception. This will not necessarily include nondisclosure of material facts if they have not asked the requisite questions.

A person subject to administrative removal has no rights of appeal within the UK other than on asylum or human rights grounds. The matter may be subject to judicial review, exceptionally. The Home Office applies the same guidelines and may have regard to compassionate factors in relation to spouses and children similar to those in deportation cases.

Once the agency decides administrative removal is the appropriate course of action, a notice of liability to administrative removal is served. A person may leave voluntarily. The immigration officer may set details and directions for removal. The State meets the cost of removal.

A person who is subject to administrative removal may return if they otherwise qualify for admission under immigration rules. The Home Office will not normally deport or remove a spouse if they have a genuine and subsisting marriage with someone settled in the United Kingdom, and the couple have lived continuously since their marriage for at least two years before the commencement of enforcement, and it would be unreasonable to expect the settled spouse to accompany their spouse on removal.

The Home Office issues guidance on cases involving children where the parent-child relationship is affected. This may apply where a single parent is to be deported or removed who has a child in the UK.

A child who is over 16 and on their own in the UK is not normally removed as overstaying. Enforcement action may be abandoned where care arrangements in the country of receipt are seriously inadequate.

When considering the deportation or removal of a parent, the Home Office must take into account the children present in the UK and related to the length of time that the child has spent in the UK. It is assumed if it is less than seven years, the child will be able to adapt to a life abroad.

Enforcement action may still be appropriate despite lengthy residence. For example, where parents have a poor immigration history and deliberately delay their case.

In reaching a decision on enforcement, the length of the parent’s residence without leave where the removal has been delayed by protracted representations, the age of the children, whether the children were conceived at a time when either of the parents had leave to remain, whether return to the parent’s country of origin would cause extreme hardship, put their health at risk, whether the parents have a history of criminal behaviour.

A person who is divorced or separated may be deported or removed even if they have a child in the UK and have access rights to that child. Parents may be admitted under immigration rules for the purpose of access to children. They may apply for access from abroad.

The Home Office may intervene in court proceedings involving children in cases of adoption and wardship if it believes that the proceedings are for the purpose of evasion of immigration control. This is so even if the interest of the children would be otherwise paramount.