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Deportation

Deportation means being forced to leave the UK and being unable to return for at least 10 years. It is used for non-British citizens who have committed criminal offences. If the Home Office want to deport you, you will be given a notice of decision to deport. This is the letter which explains the Home Office’s reasons for wanting to deport you. There is no automatic right of appeal against deportation. A right of appeal is limited to a decision to refuse a Human Rights claim.

At Parker Law Firm we focus on the relationship between the Immigration Rules which came into force on 9th July 2012 and domestic and European case law and Article 8 of the ECHR as they apply to cases involving deportations on the grounds that it is conducive to the public good. We are fighting against the deportation from the UK of our clients and advise them about the changes that were brought about by the Immigration Rules which came into force on 9th July. These Rules state that deportation will apply regardless of when the Notice of Intention to Deport or Deportation Order was made or served.

The new Rules applying to the assessment of Article 8 cases in the Deportation context are divided into two categories:

Those sentenced to at least four years imprisonment, for whom the public interests in Deportation will normally outweigh Article 8 considerations, other than in exceptional circumstances, and
Those whose Deportation is pursued either on the basis of a sentence of less than four years but more than 12 months or because their Deportation is conducive to the public good because the offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.

Under this category, it is necessary to see whether either paragraph 399 or 399(a) apply. If they do not, Deportation will follow other than in exceptional circumstances.

Paragraph 399 deals with family life cases and applies where:

She/He has a genuine and subsisting parental relationship with a child who is either British , or
Has resided in the UK for at least seven years and it would not be reasonable to require the child to leave the UK and there is no other family member who is able to care for the child in the UK OR

Has a genuine and subsisting relationship with a partner who is:

British
Has ILR
Has refugee status or humanitarian protection and (a) has lived in the UK with valid leave for at least 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life continuing outside the UK.

Paragraph 399(a) deals with private life cases and applies where:

She/He has resided in the UK for at least 20 years and has no social cultural or family ties with the country of return or
He is under 25 and has resided in the UK for at least half of his life and has no social, cultural or family ties with the country of return.

It will be immediately obvious that this sets the barrier very high and that many cases which have succeeded in establishing that deportation would be disproportionate under Article 8 ECHR would not succeed in meeting the requirements of these paragraphs and could only succeed under the Immigration Rules in exceptional circumstances.

However, despite the attempt by the Secretary of State to limit the application or Article 8 to circumstances set out in the Immigration Rules, a trial of decisions of Upper Tribunal has established that the Rules are not exhaustive of the requirements of Article 8. When the Secretary of State threatened to deport our clients from the UK we will use these cases.

How To Appeal Against Deportation and Deportation Orders (Living in the UK)

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.

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;
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 with it 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:

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 and is a British Citizen or settled in the UK, your deportation may be challenged if:

The relationship was formed when 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.

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 Refugees 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. Parker Law Firm of immigration solicitors will discuss your options 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. Parker Law Firm 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 Human Rights Convention 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.

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Parker Law Firm is a niche firm of specialist Immigration Law and Human Rights solicitors situated in the heart of Cambridge, Cambridgeshire.

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