Exceptions from UK Deportation

Receiving a deportation order can be deeply distressing and lead to considerable worry regarding your future and that of your family. UK policy on deportation has shifted considerably in the past two decades, often changing in response to different governments and their particular agendas. Matters become increasingly more contentious with the introduction of the hostile environment for migrants which was a key focus of the former UK Prime Minister, Theresa May, during her tenure as Home Secretary. While the hostile environment approach endures today under the oversight of Priti Patel, deportation numbers are markedly down compared to previous years. Indeed, according to the Migration Observatory, there were over 7,400 enforced returns from the UK in 2019, the lowest number on record.

This is little comfort to those who have just received a deportation order but it important to remember that the UK has a robust legal and judicial system that allows appeals against deportation to be heard and considered in a fair and thorough manner. In this article, we will review how a potential deportee can bring a successful appeal based on the UK and European human rights law.

What are the Possible Exemptions from Deportation?

Deportation from the UK occurs if a foreign national is convicted of a crime and is sent to prison as a result. Automatic deportation is triggered if the sentence is for 12 months or more.

The primary law which we need to understand when assessing the possible exemptions from deportation is the Nationality, Immigration and Asylum Act 2002 (the act). Sections 117A to 117C of Part 5A of the act explain how a court or tribunal should interpret what is meant by 'public interest considerations' under the European Convention on Human Rights (ECHR). The court or tribunal will use these sections to work out if a decision to deport someone is a breach of the immigration act, and, therefore, should be reversed.

If a breach under Article 8 of the ECHR is deemed to have occurred by the court or tribunal, this would be a breach of the law under section 6 of the Human Rights Act 1998 (i.e. UK law).

Section 117C states that the following must be considered when assessing whether a breach has occurred in relation to foreign criminals:

(1)The deportation of foreign criminals is in the public interest.

(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4)Exception 1 applies where—

(a)C has been lawfully resident in the United Kingdom for most of C's life,

(b)C is socially and culturally integrated in the United Kingdom, and

(c)there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

The key points to note from the act are:

• There are two primary exceptions that apply if a foreign criminal has been issued with a deportation order.
• If the individual received a prison sentence of less than four years, revocation of a deportation order may be possible if that person:
  • Exception 1 - has been in the UK for more than half of their life and they have integrated socially and culturally in the country.
  • Exception 2 – has a child or partner in the UK to which they have a genuine and continuing relationship, and it would be unduly harsh on them if the person was deported.

As the act also states, for cases where the person who has received a deportation letter has been sentenced for four or more years, an even stronger case will need to be made. These are referred to as 'very compelling circumstances'. It should be noted that the courts set a high bar for very compelling circumstances, and will look for exceptional circumstances that outweigh the general public interest.

Final words

The importance of seeking expert advice from immigration Solicitors cannot be overstated if you have received a deportation order. The chances of having an order overturned will rest heavily on the strength of your case and the quality of the evidence provided. This is especially so for anyone who is being threatened with deportation due to a jail term of four years or more, as the standard exceptions no longer apply, and there is a need to prove that there are very compelling circumstances.

A team of experienced immigration lawyers who have successfully defended other deportees will give you the best chance of having a fair hearing and achieving a successful outcome. You can be assured that help is available, and you do not need to fight for your right to remain in the UK alone.