Immigration Solicitors UK

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9th March 2014

Challenging Decisions Refusing ‘Adult Dependant Relatives’ Entry Clearance to the UK

Barnes Harrild & Dyer, are specialist immigration solicitors based in Croydon. We write this Article ... Read more ›

7th January 2013

New Settlement Route for Commonwealth HM Armed Forces

Many will recall various accounts of Commonwealth citizen recruits in the British army being denied ... Read more ›

Deportation & Removal

Deportation from the UK: The Immigration Act 1971

The Secretary of State has the power to make a deportation order against a foreign criminal under the Immigration Act 1971, sections 3(5) and 3(6).

The starting point for the Secretary of State is whether the person is liable for deportation. This normally means:

  • The person is not a British citizen; and
  • The person has been convicted of a criminal offence; and
  • Either:
    • The sentencing judge recommended deportation (section 3(6)); or
    • The Secretary of State has deemed deportation to be conducive to the public good (section 3(5)(a)).

The UK Borders Act 2007

On 1 August 2008, the UK Borders Act 2007 came into force. This created an additional provision for ‘automatic’ deportation from the UK.

What this means in practice is that section 32 of the UK Borders Act 2007 compels the Secretary of State to consider a person’s deportation conducive to the public good if:

  • They have been sentenced to a term of imprisonment of at least 12 months; or
  • They have been sentenced to any term of imprisonment if their offence is one specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal).

Thus:

  • If a person is sentenced to
    • 12 months or more in prison, or
    • Any period for a specified offence,
  • Their deportation is automatically considered conducive to the public good, under the 2007 Act; and
  • They are therefore liable to deportation under the 1971 Act.

Section 33 of the UK Borders Act 2007 sets out a number of exceptions to the automatic presumption that deportation is conducive to the public good. The most important are:

  • Where removal would breach the UK’s obligations under the 1951 UN Convention on the Status of Refugees;
  • Where removal would breach the person’s Human Rights; and
  • Where ‘the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.’

Even if the ‘automatic’ statutory presumption does not apply, the Secretary of State can still consider that deportation is conducive to the public good, and make a deportation order on that basis. The person would then have to rely on other grounds in order to resist deportation: generally asylum, Article 3 (prohibiting torture, inhumane and degrading treatment) or Article 8 (the right to respect private and family life).


Removal from the UK

Alternatively, the UK Border Agency may seek to remove a person from the UK back to their country of origin.

The UKBA often refuse passenger’s entry to the UK, or the UK Border Agency issue removal directions with very little notice. In certain cases the failure to grant entry or the intended removal from the UK will be unlawful. We can assist by making written submissions that if not accepted by the UK Border Agency can be challenged by way of Judicial Review, which is an action in the High Court to obtain an injunction. We can also assist in cases where you have been issued a refusal decision by the UK Border Agency or the courts and need urgent advice and assistance in a very short time frame to comply with a deadline.

Please note that we are only able to provide publicly funded assistance to foreign prisoners who are detained at one of Her Majesties Prisons in London and the South East of England. We cannot provide public funding to any detainee at one of the immigration removal centres.

We can, however, if we agree that a detainee at a removal centre has been detained for a prolonged period of time with no imminent prospect of removal, assist in a claim for unlawful detention and release with what is known as certificated work. This is another form of legal aid. We would however require our private fees to be paid in order to assess the case and address pre action protocol issues before a public funding certificate can be issued.