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“Our objective is that foreign national prisoners should face

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					                       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 [2006] 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.

				
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