Deportation is how the UK Home Office will seek to remove a foreign national from the UK, following the commission of a criminal offence.
If someone is deported from the UK, this will usually come with a re-entry ban of 10 years. This will prevent the person from applying to return to the UK for 10 years following deportation from the UK.
Deportation can have significant consequences for the person facing removal as well as their family in the UK. It is therefore important to take advice as soon as possible, to ensure that you receive advice in a timely manner.
There are various legal provisions which allow the Home Office to pursue deportation, again non-British nationals, that are convicted of an offence.
Some of these are as follows:
No. Deportation action cannot be taken against a British citizen. However, there are some limited circumstances in which the Home Office may seek to deprive/remove someone of their nationality if they are British but have been considered to have committed a very serious offence. In such cases, if nationality is deprived and the person is no longer a British citizen, theoretically deportation action could then be pursued against that person.
Having Indefinite Leave to Remain (‘ILR’) is not a barrier to deportation, and therefore the Home Office will pursue deportation against you if other factors are met (nature of offence length of sentence etc) even if you hold valid ILR.
The deportation process usually begins with a ‘Notice of intention to Deport’ letter. The Home Office will send this letter whilst the foreign criminal is serving their sentence. It sets out the reasons why the Home Office is seeking deportation and provides an opportunity to raise any grounds as to why the person should not be deported.
Once the Home Office receive a response, the grounds raised will be considered.
If, despite the grounds raised, the Home Office maintain that deportation will be pursued, the Home Office will then issue a refusal decision, together with a deportation order. If the refusal decision engages human rights or protection based arguments, the applicant will have a right of appeal.
The case can then proceed to an appeal before a judge in the First Tier Tribunal. A person who has been served with a notice of intention to deport can appeal against such notice within 14 days from the date of receipt of such notice. The notice of appeal must be filed with the First Tier Tribunal where the Immigration Judge will hear the appeal and decide whether or not the deportation is in accordance with the law.
At Batley Law, we have extensive experience of helping clients through all of the above stages in a deportation process. If you would like further advice or help, feel free to get in touch.
Yes. Most deportation appeals will involve some kind of argument in relation to family and private life. This is a right that is covered by Article 8 of the European Convention on Human Rights.
However, the consideration of Article 8 (family and private life) arguments in a deportation appeal will depend on the length of the sentence that was handed down:
If your sentence is for less than 12 months, and your are not considered to be a persistent offender or that your offence caused serious harm, you can raise Article 8 arguments in your case.
These will be considered as they would in any human rights appeal. As always, you should provide as much evidence as you can of your family and private life, by way of documents and witness evidence where appropriate.
If your sentence is more than 12 months but less than 4 years, you can raise Article 8 in your appeal if:
At an appeal, the Tribunal will taken into account lots of different factors when considering the above. For example, the Tribunal will take into account whether the relationship was formed when your immigration status was precarious. It will also consider whether it would be unduly harsh for your child or your partner to live in the country to which you are to be deported, or to remain in the UK without you. The Tribunal will also consider whether there are very significant obstacles to integration in your country of return.
If your sentence is for more than 4 years, the threshold to challenge the deportation by raising grounds related to Article 8 is far higher. The law states that you must show that there are very compelling circumstances, above and beyond those described above. This means that it will not be enough to show that you have a partner or a child in the UK who are British and that the impact on them will be unduly harsh. You will need to demonstrate circumstances beyond this, i.e. circumstances that are very compelling.
Repeated decisions of the higher courts in the UK (Court of Appeal, Supreme Court) have re-iterated the fact that the ‘Very Compelling Circumstances’ test is a very high threshold.
In a recent case, the Court of Appeal, provided an example of a case where it considered that this threshold was met.
The case is Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982. The First-tier Tribunal had allowed a Jamaican citizen’s appeal against deportation due to his “intense” bond with his British child and the emotional and psychological damage that child would suffer if his father, who was his primary carer, was deported. The Home Office appealed, but was ultimately unsuccessful as the First-tier Tribunal judge had conducted the structured analysis required by the relevant legal provisions and reached a decision which was “reasonably open to him on the evidence”
This case presents some hope. Every case will of course be considered on its own merits. But this decisions provides an indication that where there is a British child that will suffer serious psychological damage if the parent is deported, then this alone may be sufficient in meeting the high threshold.
If you find yourself facing deportation after the commission of a serious offence, you should seek advice as early as possible, to stand the best chance of challenging the decision. Our expert lawyers at Batley Law can help. Ask for a call back today!
Where the appeal against the deportation notice is successful on the grounds that the deportation will be in breach of the UK’s obligation under Article 8 of the ECHR, he may be granted leave to remain for a period not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Such person may be granted an extension of stay for further period of 30 months if an extension of stay is sought before the expiry of such leave.
At Batley Law, we understand that being faced with the threat of deportation can be stressful and frightening for an individual and their family.
Our team has dealt with deportation for many years, and has experience of taking and winning deportation appeals before the Tribunal.
Our solicitors will take detailed instructions from you in order to understand your personal and family circumstances, and the background of the offence. We will then advise you of the arguments you may be able to raise and the merits of your case.
If you would like our assistance with your spouse application, get in touch today.
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