By Stephen Slater of OTS Solicitors
Deportation is a powerful tool for any government and most immigration appeal solicitors will be anxious to ensure that such power is used in accordance with the law and with human rights. With the spotlight sharply on the United States in recent weeks, and Donald Trump’s policy of segregating children from the adults they are travelling with at the US border, immigration lawyers have no doubt had a busy time Stateside. Another key area of focus has been the US administration’s approach to deportation. Much has been made of Trump’s commitment to speedy deportation bypassing judicial process -as he tweeted recently
“…When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. …“
Administrative Removal in the US
As any UK immigration lawyer will recognise, administrative removal is more akin to the UK’s process of deportation following criminal conviction. In the US, if an individual has been convicted of an aggravated felony and does not have lawful permanent resident status in the US, he or she can be subject to Administrative Removal.
Under the US system, the decision is made by a Department of Homeland Security (DHS) officer, with no review by an immigration judge. Individuals served with a Notice of Intent to Issue Final Administrative Removal Order have less than 2 weeks to review the evidence and provide any of their own evidence including affidavits to challenge the order. Only if there is insufficient evidence to issue the removal order will the matter got to an immigration judge in regular removal proceedings. It is possible to challenge the Removal Order in the federal Circuit Court of Appeal – a complex process.
One key point to be aware of is that in the US, criminal law and immigration law differ, so that what is considered to be an aggravated felony for the purposes of immigration law may differ from the criminal law. The state/federal distinction also adds an additional layer of complexity, as something may not be considered a felony in one state but may amount to an aggravated felony for immigration law purposes.
Administrative removal from the UK
Deportation of criminals from the UK for the public good in an equivalent form to that in the US has been around since the 1950s. Since October 2000, under the Blair government, administrative removal has also been open to overstayers, those breaching their conditions of Leave to Remain, and individual who have entered the UK by deception.
Since August 2008, under the Borders Act 2007, the UK has operated a system of automatic deportation for those convicted to at least 12 months imprisonment, and the concept that the deportation of criminals is conducive to the public good. Unlike the US system of administrative removal, the UK immigration and removal system includes provision to make arrangements to safeguard and promote the welfare of children in discharging its immigration, nationality and general customs function. Any deportation requires a careful balancing act between what is in the public interest and what is in the interests of any qualifying partner, or child, with whom the deportee is in a genuine and subsisting relationship. This is the subject of an appeal currently before the Supreme Court, looking at the rights of children who have been in the UK for at least 7 years in circumstances where a parent is to be removed. London immigration solicitors are awaiting the decision.
Expedited Removal – reviving a pre-existing power in the US
The US operates both expedited removal and administrative removal. Under expedited removal, the DHS will interview those entering the US through a border checkpoint, international airport or shipping port, and try to establish if they have valid travel documents. The purpose of the interview is also to establish if the individual is coming to the US for the reason stated in those travel documents. If the DHS officer considers there to be fraud, or that the documents are not valid, he or she can refuse he individual entry and order the individual to be removed immediately, with no right of appeal. An individual removed in this way is usually then barred from the US for 5 years.
Although Trump has made much of his tough stance on immigration, his Executive Order merely extends a power that has been on the statute books in the US since 1996, under the illegal immigration Reform and Immigrant Responsibility Act. In fact, it’s a relatively ‘light touch’ policy, meaning that anyone in the US for less than 180 days can be removed without any right of appeal, and barred from the US for 3 years.
Claiming protection or relying on a citizenship claim in the US
The only situations where an individual without appropriate travel documentation will have the opportunity to discuss and have reviewed their request to enter the US will either be (1) through a claim of Asylum or protection under the Convention Against Torture in the United States, or (2) to claim lawful status in the US, for example, US citizenship, pre-existing refugee or Asylum status or lawful permanent residence.
In the first case, and Asylum officer will be responsible for determining whether you have a credible fear of returning to your home country. If the individual can establish a reasonable possibility of being persecuted or tortured if removed back to the home country, he or she goes before an immigration judge as part of regular ‘removal’ proceedings and can claim ‘withholding of removal’ or protection under the Convention against Torture.
In the latter, the DHS officer will review the claim to be in the US by looking for proof of the status claimed. If it exists, the DHS officer can allow entry or refer the matter to an immigration judge through the regular removal procedure. If there is no proof, the individual must make a statement under oath explaining the claim of legal status, he or she will be given an order of expedited removal and will have his or her case reviewed by an immigration judge. There is no further right of appeal once the immigration judge has made a decision.
OTS Solicitors have many years’ experience handling cases for individuals subject to immigration control in the UK and facing deportation. We are skilled at handling applications for immigration bail and can provide advice and assistance in relation to human rights matters and article 8 immigration issues. Book you appointment today by calling 0203 959 9123.
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Posted on: Tuesday, 26 June, 2018