How To Appeal Against Deportation

Where the Secretary of State or an immigration officer is considering deportation or removal of a person who claims that their deportation or removal from the UK would be a breach of the right to respect for private and family life under Article 8 of the Human Rights Convention, Part 13 of the Rules will apply.

UK Deportation Rules

Part 13 of the Immigration Rules state that deportation may be considered where the Secretary of State deems the person’s deportation to be conducive to the public good.

Deportation order

Where the person is the spouse, or civil partner or child under 18 of a person ordered to be deported, and where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment, a deportation order can be challenged under Article 8 ECHR (the right to private and family life).

Most often, foreign nationals who are living in the UK may be issued with a deportation order if they commit a criminal offence in the UK which carries a custodial sentence. All custodial sentences of more than 1 year will lead to an automatic deportation order being granted.

Where there is automatic deportation as a result of a prison sentence of 4 years or more, deportation can only be challenged where there are very compelling circumstances. If the person being deported is seriously ill, this may be very compelling.

If you have a deportation order made against you as a result of a prison sentence of one year or more, but less than 4 years, and you have a parental relationship with a child under 18 who is a British citizen or has lived in the UK for 7 continuous years, the deportation order may be challenged if:

-The relationship was formed when your immigration status was not precarious,

-It would be unduly harsh for the child to live in the country to which you are to be deported, or

-If it would be unduly harsh for the child to remain in the UK without you.

You must also be integrated in the UK and there must be very significant obstacles to integration in the destination country.

If you have a deportation order made against you as a result of a prison sentence of one year or more, but less than 4 years, and you have a genuine and subsisting relationship with a partner in the UK who is a British Citizen or settled in the UK, your deportation may be challenged if:

–The relationship was formed when your immigration status was not precarious,

-it would be unduly harsh for that partner to live in the country to which you are to be deported,

-it would be unduly harsh for that partner to remain in the UK without you.

You must also be integrated in the UK and there must be very significant obstacles to integration in the destination country.

Deportation after criminal conviction

The Home Secretary’s power to deport people is discretionary and invalidates any prior Leave to Remain. In some cases, deportation can also be challenged under the Refugee Convention or the Trafficking Convention.

How can we help?

People who are the subject of a deportation order generally have an out-of-country right of appeal. Vincent and his team of immigration solicitors will discuss your options in order to ascertain whether there is a basis upon which we can appeal the deportation. It may be that there are compelling human rights grounds for you to remain in the UK. OVO Solicitors is often asked to assist in the application for revocation of a Deportation Order.  A foreign criminal liable to deportation can claim that his deportation will be contrary to the United Kingdom’s obligations under Article 8 of the European Convention of Human Rights and can apply for this deportation order to be revoked.

Who can we help?

Usually the public interest in deportation would only not be outweighed by other factors unless there are very compelling circumstances. We may be able to help you if you are of a good character and have a strong case. Your case may be particularly strong if you have a partner in the UK, a parental relationship with a child, or a medical condition that is not treatable elsewhere. Other factors that may be considered include whether the deportee has shown remorse for their offending, whether there is a risk of reoffending, whether the offence was a violent one, whether the offence was an isolated event, the deportee’s level of integration in the UK (especially language, employment, and education), the deportee’s conduct while in confinement, and the passage of time since the offence.

Can you be deported if you have a child in the UK?

If you are liable to be deported, your spouse and your child, if they are under 18 and do not have indefinite leave to remain or a British passport, are also liable to be deported. The exception is that they will not be deported if they have leave to remain in their own right.

When the Home Office makes a decision to detain or deport an adult who has a child who remains in the UK, the Home Office must consider the possible impact on the welfare of the child, giving consideration to section 55 of the Borders, Citizenship and Immigration Act 2009.  Although every family situation is different, we specialise in complex cases where we take in-depth instructions and often evidence from various sources to be able to make representations against the removal of the adult who has care of children in the UK. We will include representations regarding the practical and emotional effect that the decision will have on a child, and the indirect consequences and effect of a deportation decision on other family members.  If an adult has spent a lengthy time in prison and did not have contact with the children, the Home Office will consider it less likely that the children will experience difficulties because of the adult’s deportation.

However, we advise our clients to re-establish contact with the child and to demonstrate that they play a major role in the child’s life.   On occasion, we will advise that the child’s views are obtained through professionals such as psychologists, so that we can explain the impact of the deportation of the parent on the welfare of the child.

Can you deport EU nationals?

The UK can deport European nationals. An EA national under EU current law can only be deported under EU law on public policy or public security grounds. A decision to refuse admission or to revoke residence or to remove is only permitted on “serious grounds” of public policy or public security.  “Serious grounds” are not defined in the EA Regulations, but case law says that EA nationals with 10 years residence in the UK can only be deported on imperative grounds of public security.

Can a residence permit be overturned?

Under, Regulation 24 of the Immigration (European Economic Area) Regulation 2016, the Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate or a residence card or a document certifying permanent residence card, if it is justified on grounds of public policy, public security or public health or on the grounds of misuse of rights.

An EA national or their family members can be administratively removed from the UK if they have never had or have stopped having a right to reside under the Regulations or their removal from the UK is justified on the grounds of misuse of a right.

Unlike a decision to deport, a person who is administratively removed is not subject to a fixed bar on re-entry. However, if they seek to re-enter within 12 months of that removal, they must show that they are exercising treaty rights immediately upon re-entry.

How long is a deportation order valid for?

An individual who has been deported from the UK must apply in writing for revocation of the deportation order and wait for the outcome of the revocation before they can travel to the UK or before they can apply for entry clearance.  An application for entry clearance for a person who has not had a deportation order revoked, will be refused automatically. An application for the revocation of a deportation order can be made at any time, but in a case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, 10 years should have elapsed since the making of the deportation order.

Can a deported person come back to UK?

The revocation of a deportation order does not entitle a person to re-enter the UK. It means that they are eligible to apply for admission under the Immigration Rule. In other words they have to make an application.

What is the difference between removal and deportation?

Administrative removal is when the Home Office forces your removal from the UK when you don’t have leave to remain or you have exhausted your rights of appeal. You can make an application to return once removed, providing that there is no ban on your return under the General Grounds of Refusal, and you have a basis on which to make the application.  Deportation is the enforced removal for public good and usually occurs after the serving of a prison sentence. You will have to apply for the revocation of a deportation order before returning to the UK. While both events mean that the applicant will be taken out of the UK, in a case of deportation the person must make an application to lift the deportation order, and only once it is lifted can visa nationals go ahead and apply for entry clearance.