LAMB BUILDING 9th July 2007 “Our objective is that foreign national prisoners should face deportation and deportation should happen as early as possible in their sentence. As an immediate step, we now have an Imminent Release Team in IND, working with HM Prison Service to ensure that all FNP’s who meet existing criteria are not being released from prison without being considered for deportation”. Liam Byrne, Minister for Immigration, Citizenship and Nationality – 17th July 2006 LEGAL FRAMEWORK 1. Immigration Act 1971 A person who is not a British citizen is liable to deportation from the United Kingdom if – Section 3 (5) (a): “the Secretary of State deems his deportation to be conducive to the public good.” Section 5 (1): gives the Secretary of State the power to make a deportation order against a person described in 3 (5) (a) above. A Deportation Order requires the person to leave and the person cannot re-enter the United Kingdom whilst the order is in force. Section 3: “(5) A person who is not a British citizen is liable to deportation from the United Kingdom if- (a) the Secretary of State deems his deportation to be conducive to the public good; or (b) another person whose family he belongs is or has been ordered to be deported. (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.” Section 5: “(1) Where a person is under section 3 (5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.” Section 7: also provides an exemption from deportation for long term residents who were „ordinarily resident‟ in the United Kingdom when the 1971 Act came into force on 1st January 1973. Where they have been resident in the United Kingdom in the United Kingdom for five years at the time when either a court or the Secretary of State is considering whether to make a deportation order „ordinarily resident‟ has no statutory meaning but has been held to exclude unlawful residence. 2. Administrative Removal – removal other than by deportation Removal of those ineligible for deportation is achieved through administrative removal. Immigration and Asylum Act 1999, Section 10 outlines the categories of immigration status to which this applies, being essentially those who have not achieved an indefinite leave to enter or remain or is an overstayer, or those who have practiced deception in seeking leave to remain, or if they have ceased to be a refugee, or family members of persons who have been directed for removal. The Home Office must review all relevant factors before making a decision to remove:- Immigration Rule 395 395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person‟s behalf. There was a regularisation scheme for overstayers, and transitional provisions were made for these circumstances:- Immigration Rule 363A 363A. Prior to 2 October 2000, a person would have been liable to deportation in certain circumstances in which he is now liable to administrative removal. These circumstances are listed in paragraph 394B below. However, such a person remains liable to deportation, rather than administrative removal where: (i) a decision to make a deportation order against him was taken before 2 October 2000; or (ii) the person has made a valid application under the Immigration (Regularisation Period for Overstayers) Regulations 2000. LAMB BUILDING 9th July 2007 DEPORTATION – PROCEDURE Before a Deportation Order is made:- The Secretary of State must review the prospective deportee‟s circumstances. The Home Office Operational Enforcement Manual (OEM) states (at Chapter 12.2):- “Before a decision to deport is reached the Secretary of State must take into account all relevant factors known to him. It is imperative therefore that all the person‟s circumstances are reported (see OEM Chapter 36.1.2):- OEM Chapter 36.1.2;- F a c t o r s t o b e t a k e n i n t o a c c o u n t w h e n d e c i d i n g w h e t h e r d e p o r t a t i o n o r a d m i n i s t r a t i v e r e m o v a l i s a p p r o p r i a t e:- F a c t o r s t o b e c o n s i d e r e d b e f o r e a d e c i s i o n t o d e p o r t i s t a k e n a r e s e t o u t i n P a r a g r a p h 3 6 4 o f t h e I m m i g r a t i o n R u l e s ( b u t s e e a l s o S e c t i o n C - A s y l u m a n d 3 6 . 1 0 - E C A s s o c i a t i o n A g r e e m e n t s ) . T h e s a m e f a c t o r s m u s t b e t a k e n i n t o a c c o u n t f o r s . 1 0 c a s e s ( p a r a 3 9 5 C o f t h e r u l e s ) . A s a m a t t e r o f p r a c t i c e , t h e s e s a m e f a c t o r s a r e a l s o t a k e n i n t o a c c o u n t w h e n c o n s i d e r i n g t h e r e m o v a l o f a n i l l e g a l e n t r a n t . T h e s e a r e i n t e r p r e t e d a s f o l l o w s : A g e - A p e r s o n w i l l n o r m a l l y b e c o n s i d e r e d f o r d e p o r t a t i o n i f h e i s a g e d 1 6 o r o v e r b u t t h e y o u n g e r o r o l d e r a p e r s o n i s , t h e m o r e w e i g h t m i g h t b e a t t a c h e d t o a g e a s a c o m p a s s i o n a t e f a c t o r ; S t r e n g t h o f c o n n e c t i o n s w i t h t h e U K - F a m i l y t i e s ( i n c l u d i n g m a r r i a g e a n d r e l a t i o n s h i p s a k i n t o m a r r i a g e a n d o t h e r c o n n e c t i o n s s u c h a s b u s i n e s s o r e m p l o y m e n t m u s t b e e x a m i n e d ; P e r s o n a l h i s t o r y - T h i s i n c l u d e s c h a r a c t e r , c o n d u c t a n d e m p l o y m e n t r e c o r d ; R e l a t i o n s h i p - T h e p a r t i e s s h o u l d n o t b e i n v o l v e d i n a c o n s a n g u i n e o u s r e l a t i o n s h i p w i t h o n e a n o t h e r . D o m e s t i c c i r c u m s t a n c e s - B e s i d e s f a m i l y t i e s a s o u t l i n e d a b o v e , t h i s i n c l u d e s a s p e c t s s u c h a s h o u s i n g , a n d w h e t h e r a n y o n e r e l i e s o n t h e p e r s o n f o r p h y s i c a l , f i n a n c i a l o r e m o t i o n a l s u p p o r t . E n f o r c e d r e m o v a l w i l l n o t n o r m a l l y b e a p p r o p r i a t e w h e r e t h e r e a r e m i n o r d e p e n d e n t c h i l d r e n i n t h e f a m i l y w h o h a v e b e e n l i v i n g i n t h e U K c o n t i n u o u s l y f o r s e v e n o r m o r e y e a r s ; ( S e e D P 5 / 9 6 ) C r i m i n a l r e c o r d - A p r e v i o u s u n s p e n t c o n v i c t i o n w i l l b e c o n s i d e r e d b u t t h e s e r i o u s n e s s o f t h e o f f e n c e ( e . g . o f f e n c e s i n v o l v i n g d r u g s , v i o l e n c e a g a i n s t t h e p e r s o n o r i m m i g r a t i o n o f f e n c e s ) w i l l b e b a l a n c e d a g a i n s t a n y m i t i g a t i n g f a c t o r s . C o m p a s s i o n a t e c i r c u m s t a n c e s - A n y c o m p e l l i n g o r c o m p a s s i o n a t e c i r c u m s t a n c e s w i l l b e c o n s i d e r e d , w i t h t h e g r a v i t y o f t h e c i r c u m s t a n c e s b e i n g g i v e n d u e w e i g h t ; R e p r e s e n t a t i o n s - M u s t a l w a y s b e c o n s i d e r e d . The Effect of a Deportation Order Immigration Rule 362 A deportation order requires the subject to leave the United Kingdom and authorises his detention until he is removed. It also prohibits him from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom given him before the Order is made or while it is in force. Effect on Family Members of the Deportee Immigration Rules 365 – 368 365. Section 5 of the Immigration Act 1971 gives the Secretary of State power in certain circumstances to make a deportation order against the spouse, civil partner or child of a person against whom a deportation order has been made. The Secretary of State will not normally decide to deport the spouse or civil partner of a deportee where: (i) he has qualified for settlement in his own right; or (ii) he has been living apart from the deportee. 366. The Secretary of State will not normally decide to deport the child of a deportee where: (i) he and his mother or father are living apart from the deportee; or (ii) he has left home and established himself on an independent basis; or (iii) he married or formed a civil partnership before deportation came into prospect. 367. In considering whether to require a spouse or child to leave with the deportee the Secretary of State will take account of all relevant factors, including, as well as the following: (i) the ability of the spouse or civil partner to maintain himself and any children in the United Kingdom, or to be maintained by relatives or friends without charge to public funds, not merely for a short period but for the foreseeable future; and (ii) in the case of a child of school age, the effect of removal on his education; and (iii) the practicality of any plans for a child's care and maintenance in this country if one or both of his parents were deported; and (iv) any representations made on behalf of the spouse or child. 368. Where the Secretary of State decides that it would be appropriate to deport a member of a family as such, the decision, and the right of appeal, will be notified and it will at the same time be explained that it is open to the member of the family to leave the country voluntarily if he does not wish to appeal or if he appeals and his appeal is dismissed. Return of Family Members to the United Kingdom Immigration Rule 389 Persons deported in the circumstances set out in paragraphs 365-368 above (deportation of family members) may be able to seek re-admission to the United Kingdom under the Immigration Rules where: (i) a child reaches 18 (when he ceases to be subject to the deportation order); or (ii) in the case of a spouse or civil partner, the marriage or civil partnership comes to an end. Notifying the Deportee of the Decision and the Procedure Immigration Rules 381 – 384 381. When a decision to make a deportation order has been taken (otherwise than on the recommendation of a court) a notice will be given to the person concerned informing him of the decision and of his right of appeal. 382. Following the issue of such a notice the Secretary of State may authorise detention or make an order restricting a person as to residence, employment or occupation and requiring him to report to the police, pending the making of a deportation order. 383. 384. If a notice of appeal is given within the period allowed, a summary of the facts of the case on the basis of which the decision was taken will be sent to the appropriate appellate authorities, who will notify the appellant of the arrangements for the appeal to be heard. It is not correct to presume that the notice of a decision to deport need NOT be given to a person if the decision is made on the recommendation of a court, see Rule 381 above. This Rule reflects the position before the Nationality Immigration and Asylum Act 2002, section 82 came into force. This introduced for the first time a right of appeal against decisions to deport following the recommendation of a court. The Immigration (Notices) Regulations 2003 (SI 2003/658) requires that written notice must be given to a person of any appealable immigration to decision. Because a decision to deport following a recommendation of the court is appealable, written notice must be given. The Immigration Directorate Instruction (IDI) on Deportation states at Chapter 13, section 1, paragraph 5:- “If, after consideration of all the relevant facts, deportation is considered the correct course of action, a notice of a decision to make a deportation order will be served.” Making of the Deportation Order and Appeals Immigration Rule 378 A deportation order may not be made while it is still open to the person to appeal against the Secretary of State's decision, or while an appeal is pending. There is no appeal within the immigration appeal system against the making of a deportation order on the recommendation of a court; but there is a right of appeal to a higher court against the recommendation itself. A deportation order may not be made while it is still open to the person to appeal against the relevant conviction, sentence or recommendation, or while such an appeal is pending. Immigration Rule 386 The person will not be removed as the subject of a deportation order while an appeal may be brought against the removal directions or such an appeal is pending. Appeals in Cases where Deportation is in the Interests of National Security The above Rules do not apply where the Secretary of State certifies that the decision to make a deportation order was taken on the grounds that the person‟s removal from the United Kingdom would be in the interests of national security (Nationality Immigration and Asylum Act 2002, section 97A, inserted by the Immigration, Asylum and Nationality Act 2006, section 7 with effect from 31st August 2006). Such a person will be able to appeal against the decision to deport only to the Special Immigration Appeals Court and only from outside the country. If the person makes a human rights claim, they can appeal from within the United Kingdom unless the Secretary of State certifies that removal will not breach the person‟s human rights. In such a case the person can appeal from within the United Kingdom to the Special Immigration Appeals Court against the certification. Asylum and Deportation Immigration Rule 380 A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention. A person may not be able to establish himself as a refugee on appeal because he has been convicted of a „particularly serious crime‟, see Nationality Immigration and Asylum Act 2002, section 72. Assault is specified as a „particularly serious crime‟ under this Act. However before this conclusion is reached an Immigration Judge must consider the provisions of the Nationality Immigration and Asylum Act 2002, section 72 (6) which states that “A presumption … that a person constitutes a danger to the community is rebuttable by that person.” The Appellant therefore has the opportunity to put forward an explanation of the circumstances of the offending which must be considered in respect of whether the presumption that the crime was „particularly serious‟ is rebuttable. Removal: Choice of Destination Immigration Rule 385 A person against whom a deportation order has been made will normally be removed from the United Kingdom. The power is to be exercised so as to secure the person's return to the country of which he is a national, or which has most recently provided him with a travel document, unless he can show that another country will receive him. In considering any departure from the normal arrangements, regard will be had to the public interest generally, and to any additional expense that may fall on public funds. Revoking a Deportation Order Immigration Rule 390 An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. Immigration Rules 391 - 392 391. In the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the court which made the recommendation or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. However, save in the most exceptional circumstances, the Secretary of State will not revoke the order unless the person has been absent from the United Kingdom for a period of at least 3 years since it was made. 392. Revocation of a deportation order does not entitle the person concerned to re- enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office. A refusal to revoke a deportation order is appealable to the Asylum and Immigration Tribunal [see Nationality Immigration and Asylum Act 2002, section 82(2)(k)]. Return to the United Kingdom whilst the Order is in force Immigration Rule 388 Where a person returns to this country when a deportation order is in force against him, he may be deported under the original order. The Secretary of State will consider every such case in the light of all the relevant circumstances before deciding whether to enforce the order. LAMB BUILDING 9th July 2007 CONSIDERING DEPORTATION – THE RULE CHANGE The Presumption The Immigration Rule (which reflected the criteria in Rule 395C outlined above) governing deportation was changed by the Statement of Changes in Immigration Rules HC 1337 July 2006 and took place on 20th July 2006. This rule includes a presumption in favour of deportation where a person is liable to removal:- Immigration Rule 364 Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. The rule begins with a presumption against deportation – historically there was a balancing exercise undertaken without such weight against the prospective deportee. Which rule applies is important (pre- or post-presumption) - the Asylum and Immigration Tribunal has ruled in ES (Deportation pending on 2nd October 2000) Ukraine  UKIAT 00056 (4th July 2006 that even an error which might have favoured the appellant was a material error of law if the incorrect rule is applied. The relevant rule is that which is in place at the date of the decision to make a deportation order. Home Office Guidance on the Use of Deportation OEM Chapter 13, paragraph 13.1 T h e S e c r e t a r y o f S t a t e m a y d e c i d e t h a t a p e r s o n‟ s d e p o r t a t i o n i s c o n d u c i v e t o t h e p u b l i c g o o d i f ( a m o n g s t o t h e r t h i n g s ) : h e h a s b e e n c o n v i c t e d o f a s e r i o u s o f f e n c e o r h a s a s e r i e s o f c o m p a r a t i v e l y m i n o r c o n v i c t i o n s a n d w h e r e t h e c o u r t d i d n o t r e c o m m e n d d e p o r t a t i o n ; h e h a s o b t a i n e d i n d e f i n i t e l e a v e t o r e m a i n b y d e c e p t i o n OEM Chapter 13, paragraph 13.2 There are many reasons why a Court may decide not to recommend deportation under section 3(6), (see Chapter 15), most commonly because its attention was not drawn to its powers in this respect or the judge decided to leave the matter to the Secretary of State. Consideration will be given to deportation on conducive grounds if the person has one conviction for a serious crime or several convictions for less serious crimes which, taken together and weighed against any compassionate circumstances, merit deportation. The fact that a court has decided not to make a recommendation does not debar the Secretary of State from taking such action himself but would be taken into account in consideration of the case. Guidance on Use of Deportation OEM Chapter 12, paragraph 12.3 Enforcement action should not be taken against nationals who originate from countries which are currently active war zones. Country Information Policy Unit (CIPU) or Enforcement Policy Unit (EPU) will provide advice on this.