As of June 2023, there were at least 10,321 foreign nationals in prison with 6,393 enforced returns in 2023. The Secretary of State has the power to make an order of deportation against a convicted foreign national under the Immigration Act 1971. A deportation order will require a foreign national to leave the UK and authorises their detention until removal. The order prohibits the foreign national from re-entering the UK indefinitely until and unless the order is revoked or the order ceases to have effect if the person becomes a British citizen.
Automatic deportation of foreign nationals
The Secretary of State must make a deportation order against foreign criminals, unless one of the statutory exceptions under s33 UK Borders Act 2007 applies.
Foreign criminals are described as persons in the UK, not British citizens, who are convicted of an offence in the UK and either:
- Sentenced to a period off at least 12 months imprisonment, or
- The offence is specified as serious, and the person is sentenced to a period of imprisonment.
A period of imprisonment does not include suspended sentences or consecutive sentenced totalling 12 months.
A list of serious crimes is provided by The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004.
Foreign criminals can be removed from the UK before the end of their prison sentence through the Early Removal Scheme, Tariff-Expired Removal Scheme as well as a prison transfer agreement. A deportation order must not be made while an appeal against the conviction or sentence to which the order is to be made has been instituted and not withdrawn, determined, or could be brought.
Automatic deportation does not apply, under s33 UK Borders Act 2007, where:
- The removal of a person would breach their convention rights or the UK’s obligations under the Refugee Convention
- The person was under the age of 18 at the date of conviction
- The removal of a person would breach the rights under the community treaties
- The person is subject to extradition proceedings
- The person is subject to specified orders/directions under the Mental Health Act 1983 such as a hospital order, transfer direction, guardianship order or transfer for treatment direction
Discretionary deportation of foreign nationals
Where a person does not meet the requirements for an automatic deportation order, the Secretary of State has discretionary powers to deport if considered to be “conducive to the public good”, s3 Immigration Act 1971. The Home Office’s Foreign National Offender Return Command will consider whether deportation based on criminality is appropriate. Deportation on criminality grounds will be pursued where a person:
- Has received a custodial sentence of 12 months or more for a single offence
- Has received combined sentences totalling 12 months or more
- Has been convicted in the UK of an offence which has caused serious harm
- Is a persistent offender, unless exempt from deportation
Deportation may also be pursued for reasons including:
- National security
- Where a court has recommended deportation (in practice this power is not exercised – R v Kluxen [2010] EWCA Crim 1801)
- Involvement in gun crime or serious drug offending, regardless of the length of sentence received
- Where there is compelling circumstantial evidence that the person’s conduct or presence in the UK has or will cause serious harm, but the person has not yet been convicted of a criminal offence
Challenging deportation orders
The Secretary of State will serve a Notice of Intention to Deport which will provide the foreign national the opportunity to make representations, providing the reasons why they should not be deported. A foreign national may rely on Article 8 of the European Convention on Human Rights to challenge a deportation order. Part 5A of the Nationality, Immigration and Asylum Act 2002 and Part 13 of the Immigration Rules specify considerations which the Secretary of State must have regard to when considering whether deportation would breach a foreign criminal’s rights under Article 8 of the European Convention on Human Rights.
For foreign national offenders sentenced to at least 12 months imprisonment, the public interest requires the deportation of the foreign criminal unless
- Article 8 private life exception applies. This criterion would be met where a person has been lawfully resident in the UK for most of their life, is socially and culturally integrated in the UK, and there would be very significant obstacles to their integration in the country of return OR
- Article 8 family life exception applies. This criterion would be met where a person has a genuine and subsisting relationship with a qualifying partner or child resident in the UK and the effect of their deportation on that person would be unduly harsh.
For foreign national offenders sentenced to at least 4 years’ imprisonment, the public interest requires deportation of a foreign criminal unless they can show compelling circumstances over and above the Article 8 private and family life exceptions.
Revocation of deportation orders
A foreign national can apply to the Home Office for revocation of their deportation order. The application should normally be made from outside the UK following the person’s departure from the UK. Applications can be made as part of an entry clearance application for leave to enter to UK or directly to the Home Office. Revocation of a deportation order does not entitle a foreign national to enter the UK, but simply means they may apply for and be granted permission to enter or stay in the UK.
Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.