An increasing number of foreign nationals are being subjected to deportation orders. Our top London immigration solicitors can provide you with the best and most up-to-date advice and representation if you find yourself being ordered to leave the UK by the Home Office.

What is a deportation order?

If you’ve broken the Immigration rules, for example by living in the UK illegally, the Home Office can make you leave via a deportation order. If you have been given a deportation order, you may not be able to re-enter the UK, even as a tourist on a Standard Visitor Visa obtained with the help of an Immigration solicitor, for a certain period.

What are the reasons a deportation order can be made?

The Secretary of State can issue a deportation order for the following reasons:

• It is believed to be in the public good that the person subject to the deportation order is removed from the country.
• The foreign national is the spouse, civil partner or child of the person subject to a deportation order.
• The foreign national is over 17 years has committed a criminal offence and the court which sentenced him or her recommends that they be deported after they have served their prison sentence.

What happens if I receive a deportation order?

Once a deportation order has been made against you, you may be held in detention by the Secretary of State. Alternatively, you may be able to live at your normal address but restrictions will be placed on you. For example, you may have to report to an Immigration facility/officer every week.

If you receive a deportation order, you need to quickly obtain the best Immigration advice from a lawyer. They can help you understand why you have been given a deportation order and advise you on making an appeal.

Does a deportation order breach my Human Rights?

If a deportation breaches the UK’s commitments under the European Convention of Human Rights (ECHR) or the UN Refugee Convention, it may not be allowed.

There has been an enormous amount of controversy surrounding the Human Rights Act 1998 (which incorporates the ECHR into UK law) and the ability to deport foreign criminals.

It is believed that much of British Prime Minister, Theresa May’s desire to scrap the Bill of Rights Act results from her frustration in not being able to deport foreign-national criminals, especially Abu Hamza, the radical cleric who preached Islamist fundamentalism and militant Islam at a Finsbury Park mosque (he was eventually extradited to the United States where he is currently serving a sentence in Colorado).

There are two fundamental rights which could be breached when a deportation order is granted are the following: Article 3 of the ECHR which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment and/or Article 8 of the ECHR which states everyone has the right to respect for their private and family life.

However, analysis of deportation cases shows that it is very difficult to successfully fight a deportation order on Human Rights grounds. It is therefore crucial that if you plan to challenge a deportation order on Human Rights grounds, you instruct a top Immigration solicitor to advise and represent you.

What factors will be taken into account in an appeal?

The Immigration Rules, Part 13, para 390 sets out the factors to be taken into account in deciding whether or not to revoke a deportation order. An application for revocation will be considered ‘in the light of all the circumstances’, including:

• the grounds on which the deportation order was made
• any representations made in support of revocation
• the interests of the community, including the maintenance of an effective Immigration control
• the interests of the applicant, including any compassionate circumstances

Can Secretary of State use a “deport now, appeal later” strategy to remove me quickly from the country?

In 2014, new deportation appeal provisions of the Immigration Act 2014 came into force. These allowed the Secretary of State to require that any appeal for deportation be made from abroad only (deport now, appeal later) in both UK and EU law cases.

Section 94B of the Nationality, Asylum and Immigration Act 2002 created this new power. It states:

“94B Appeal from within the United Kingdom: certification of Human Rights claims made by persons liable to deportation 

(1) This section applies where a Human Rights claim has been made by a person (“P”) who is liable to deportation under—

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or
(b) section 3(6) of that Act (court recommending deportation following conviction).

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”

The Home Office guidance on what constitutes serious irreversible harm applies in both EEA and non-EEA cases.

As with all Home Office tests, the threshold is high. The guidance provides the following as examples of situations that may constitute serious irreversible harm:

• “The person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care
• The person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else who can provide that care”

The following examples would not meet the threshold of ‘serious irreversible harm’ according to the guidance:

• “A person will be separated from their child/partner for several months while the individual appeals against a Human Rights decision
• A family court case is in progress
• A child/partner is undergoing treatment for a temporary or chronic medical condition that is under control and can be satisfactorily managed through medication or other treatment and does not require the person liable to deportation to act as a full-time carer
• The FNO has a medical issue which does not lead to an Article 3 breach
• A person has strong private life ties to a community that will be disrupted by deportation (e.g. they have a job, a mortgage, a prominent role in a community organisation etc.)”

In June 2017, the Supreme Court ruled in R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] All ER (D) 70 (Jun) that the government policy of “deport now, appeal later” was unlawful.

More than 1,100 foreign criminals had been removed from Britain under the system, which was introduced in July 2014. It was a Conservative manifesto pledge and denies foreign criminals the right to launch an appeal against deportation while they are in the country.

The Supreme Court ruled that deporting foreign criminals before appeal breached their Human Rights as it is likely to significantly weaken their case (it is worth noting that no out-of-country appeals had been successful thus far).

The court held:

• The individuals and their Immigration lawyers would face difficulties in giving and receiving the best instructions before and during an appeal hearing
• A factor in an effective appeal is the ability of the applicant to give live evidence on their family ties in the UK and whether they are a reformed character
• Evidence via video link may suffice but the financial and logistical barriers to giving evidence that way from abroad are insurmountable

The court ruled that the Home Secretary had failed to establish that the 'deport first, appeal later' rule struck a fair balance between the rights of the men and the interests of the community.

Thus, the decision was unlawful.

Repercussions of the Kiarie decision

 

Until the Supreme Court’s decision in Kiare, clients had to show extremely strong evidence that their substantive rights under Article 8 of the ECHR (or those of their family members) would be seriously breached by deportation in advance of their appeal. Failing to do so would mean they would have had little chance of challenging a section 94B certificate successfully.

Following the Kiarie judgment, clients may have hope that until the Ministry of Justice takes significant steps both to improve the provision of facilities at hearing centres and removes some of the “financial and logistical barriers” identified as making it difficult for appellants to give evidence, English courts will continue to find that those facing deportation are not provided a fair platform to make an appeal.

OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with deportation and removal orders would be happy to talk to with you about your options.

By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.