Deportation occurs where the Secretary of State for the Home Department (SSHD) or an Immigration Officer is considering deportation or removal from the UK would be in breach of the their human rights. Commonly, a breach of the right to respect for private and family life by virtue of Article 8 of the Human Rights Convention, Part 13 of the Rules will apply.
UK Deportation Rules
Part 13 of the Immigration Rules set out that deportation may be considered where the Secretary of State considers the persons’ deportation to be conducive to the public good.
363. The circumstances in which a person is liable to deportation include:
(i) where the Secretary of State deems the person’s deportation to be conducive to the public good;
(ii) where the person is the spouse or civil partner or child under 18 of a person ordered to be deported; and
(iii) 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.
Deportation Order
Frequently, foreign nationals who are living in the United Kingdom may be issued with a deportation order if they commit a criminal offence in the UK which carries a custodial sentence.
One year sentence or more
All custodial sentences of one year or more will lead to an automatic deportation order being granted.
Four-year sentence or more
In the event a deportation order is automatic as a result of a sentence of four years or more, deportation may only be challenged where there is evidence of very compelling circumstances. The test as to what is considered a ‘compelling circumstance’ is a high threshold.
Specific circumstances – Private & Family Life
Deportation: Child or Children in the UK.
If you are subject to a deportation order as a result of sentence of one year or more, but less than four years and you can demonstrate:
- You have a parental relationship with a child under the age of 18 who is a British national or have resided in the UK for seven years continuously.
The intended deportation order may be challenged if:
- The relationship with your child was formed when your immigration status was not precarious;
- It would be unduly harsh for the child to reside in the country you are to be deported; or
- It would be unduly harsh for the child to remain in the United Kingdom without you.
In addition to the above factors, an applicant must demonstrate that they are:
- Integrated in the UK and there must be very significant obstacles to integration in the intended country of deportation. Please note the test for very significant obstacles is a high threshold.
Deportation: Partner in the UK
If you have a deportation order made against you as a result of a custodial sentence of one year or more, but less than four years and you can demonstrate that you have:
- A genuine and subsisting relationship with a partner in the UK who is a British Citizen or Settled in the UK (e.g. they hold ILR) you may challenge deportation if the following can be shown:
- Your relationship formed when your immigration status was not precarious.
- It would be unduly harsh for your partner to live in the country to which you are to be deported.
- It would be unduly harsh for your partner to remain in the UK without you.
In addition to the above factors, an applicant must demonstrate that they are:
- Integrated in the UK and there must be very significant obstacles to integration in the intended country of deportation. Please note the test for very significant obstacles is a high threshold.
Deportation after conviction under criminal law
The Secretary of State’s power to deport is discretionary and curtails any prior leave to remain in the UK. In certain instances, deportation can also be contested under the Trafficking Convention or the Refugee Convention.
How can we assist you?
The team at Branch Austin McCormick LLP have extensive experience in securing a successful determination at first instance or at appeal in regards to deportation matters. Our private client immigration team have particular experience with complex deportation cases. Should you wish to discuss your prospective case further, please contact Jayesh Jethwa, Charlotte Catto or Hal Branch at info@branchaustinmccormick.com
Please note, the information on this blog is for general purposes only and does not purport to be comprehensive or to amount to legal advice. Whilst we strive to ensure the information and law provided is as accurate as possible at the date of publication, it should be noted that, due to the passage of time, this does not necessarily reflect the current legal position. Branch Austin McCormick LLP accepts no liability for loss which may arise from accessing or relying upon the information within this blog. For formal legal advice please contact our Immigration Department.
