Deportation and Detention
What Is Deportation?
Pursuant to the Immigration Act 1971 [sections 3(5),3(6)], the Secretary of State has the power to make an order for deportation against any criminal action of a foreign national. If you are a foreign national who has been convicted of any crime in the UK, there is a possibility that you may be deported. Further, s.32 of the UK Borders Act 2007 a foreign national may be subject to ‘automatic’ deportation if he has been convicted of an offence and received a sentence period of 12 months or more. The rules state that if you were sentenced for more than 12 months, your deportation is “conducive to the public good and in the public interest”.
- A deportation order requires the foreign national to leave the United Kingdom and authorises his detention until he is removed.
- After serving your sentence you can still be detained in prison or at an Immigration Removal Centre until you are removed from the UK.
- A deportation order carries the risk of getting banned from entry to the UK for up to ten years.
- It also prohibits him from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom given to him before the Order was made or while it is in force.
How can you challenge Deportation?
You can apply for a judicial review [insert link] if you do not have a right of appeal [insert link] and challenge on the following grounds.
- Have family in the UK which includes children, spouses, partners.
- Have strong ties in the UK for instance you came as a child.
- Lived in the UK for a long period of time and there are very significant obstacles why you cannot return to your country of origin.
- Infringement of Human Rights or the Refugee Convention
- Mental health conditions
► Remember that a leave to remain application can be appealed but a deportation order itself can only be challenged by a judicial review.
► The seriousness of the offence and sentence period determines the merits to challenge. For example, if you are convicted of a drug offence and receive a 6-month sentence your prospects of success may be greater than someone who has been convicted of robbery and received a 2-year sentence.
► If your sentence period is more than 4years, it is extremely difficult to challenge as you need to have “very compelling circumstances” but we have had good success rate.
Here at CK Solicitors, we are available round the clock for efficient and quick immigration, deportation, and other solutions.
What is a Removal?
By terminology, a ‘removal’ order means the person has committed a civil breach such as breaching the Immigration Rules (‘overstaying’) as opposed to committing a criminal offence. This is referred to as ‘administrative removal’. However, grounds for challenging a Removal Direction are similar to that of Deportation. Breach of Immigration Rules which can lead to a Removal are usually as follows:
- if you do not have any leave to remain (immigration status) and haven’t applied for any.
- if your asylum or immigration application has been refused and have no right of appeal [insert link] or haven’t appealed.
- if you had limited leave to remain in the UK which has now expired and there is no pending application with the Home Office.
How does it work?
1- You will be served with a Notice asking you to leave unless you have grounds. This is called Statement of Additional Grounds.
NB: at this point of time you may well be detained and the notice time periods offered are shorter.
2- Once you have submitted the reasons for staying in the UK, a decision will be made.
NB: If you have previously claimed asylum you can submit new evidence as further submissions commonly known as a ‘Fresh claim’.
3- If the decision leads to a refusal the Home Office will ask you to voluntarily return to your country.
4- If you do not return they will book your tickets and force you to be removed from the UK. This will carry entry bans for you depending on the time you have overstayed. This is between 2 to 5 years.
DETENTION & BAIL
The Immigration Act 1971 provides the majority of the statutory powers of detention for those subject to immigration control, although these provisions have been amended and added to by subsequent legislation. Everyone always fears detention and in the previous section we have explained when and why you can be detained. This is primarily if you do not have any leave to remain in the UK and there is no pending application or appeal to regularize your immigration status. It is then that lawyers apply for bail on the detainee’s behalf.
You may be held in a short-term holding facility to start with. You will then usually be moved to a longer-term detention centre/ Immigration Removal Centre.
Who should not be detained?
In addition to unaccompanied minors the Home Office ‘Adult at Risk’ Policy states a person should not be detained if he/she indicates to be “particularly vulnerable to harm in detention”:
- suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition)
- having been a victim of torture
- having been a victim of sexual or gender based violence, including female genital mutilation
- having been a victim of human trafficking or modern slavery
- suffering from post traumatic stress disorder (which may or may not be related to one of the above experiences)
- being pregnant
- suffering from a serious physical disability
- suffering from other serious physical health conditions or illnesses
- being aged 70 or over
- being a transsexual or intersex person.
CONTACT US NOW TO APPLY FOR BAIL IF YOUR FAMILY MEMBER OR FRIEND IS DETAINED.
Immigration Bail is now governed by Schedule 10 of Immigration Act 2016.
There are two types of immigration bail:
- the Home Secretary (‘Secretary of State bail’) any time after you arrive in the UK. Here a Form 401 needs to be completed.
- the First-tier Tribunal (Immigration and Asylum Chamber) – only if you arrived more than 8 days ago. Here Form B1 needs to be completed.
- Criminal Convictions- the seriousness of the offence will be taken into account.
- Risk of re-offending- whether you would commit the same offence again or other similar offences.
- Risk of Absconding- This should be low and many factors including the above and sureties will be considered.
- Sureties (Financial Condition Supporter)- It is best if we have two Supporters/ sureties. This is the person who will pay money if you don’t follow the conditions of your bail and he/she can also provide you with accommodation.
- Recognisance- The Applicant may have further agreed to be bound to a recognisance himself which means if he breaches bail conditions he will have to pay money as stated.
- Rule 35 report- requires detention centre doctors to report to the Home Office “any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.”
- Fresh immigration application – the Applicant may be in the process to regularise his stay in the UK; he has an outstanding asylum and/or human rights claim with representations to lift any removal directions.
- Impact on family- It will be considered if the detainee has children and family.
- Residence Condition: Applicant will need to show that upon release he will reside at a particular address or an accommodation. This can either be provided by your financial supporter or by the Home Office.
After release from the Detention centre
If you’re granted bail, there will be at least one condition you have to obey.
You might have to:
- report regularly to an immigration official
- attend an appointment or hearing
- be restricted on where you can live
- have an electronic monitoring tag
- have restrictions on the work or studies you can do
- obey any other condition decided by the person granting your bail
► If you were refused bail in the last 28 days, you won’t get another hearing unless your situation has changed significantly.
Contact one of our experienced immigration lawyers for a FREE CONSULTATION