The Government’s Deport First, Appeal Later Policy – Deportation of Foreign National Criminals and Appeal Rights After the Immigration Act 2014

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INTRODUCTION

The Government has brought in changes in relation to restricting appeal rights and these mostly  affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights  claim they will not obtain a right of  appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers  thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.

LIABILITY TO DEPORTATION

Non- EEA foreign criminals  may be considered for deportation under the Immigration Act 1971   or the UK Borders Act 2007.

To be subject to automatic deportation  provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007.  Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.

Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:

  • the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
  • the period of imprisonment is 12 months or more, and
  • the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
  • the criminal was serving that sentence on or after 1 August 2008, and
  • the criminal had not been served with a notice of decision to deport before 1 August 2008, and
  • none of the exceptions set out in section 33 of the 2007 Act apply.

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence  is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.

A non -EEA foreign national will normally be considered for deportation pursuant to  the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;

  • the non -EEA foreign national is recommended for deportation by a court empowered to do so;
  • the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
  • the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
  • the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
  • the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;

The Home Office can also take into account:

  • Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
  • Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
  • Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971  states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).

If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation  under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.

DEPORTATION APPEALS AFTER 20 OCTOBER 2014

The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.

Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.

The place from which an appeal can be brought or continued is dependant on where the person was when  the claim was made and the nature of the claim. The definition  of “foreign criminals” does not include  all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first  phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human  rights or protection claim if the claim is refused the right of appeal is under  the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations  that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from  20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.

A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.

CERTIFICATION

If the representations  raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to  consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection claims under section 94B of the 2002 Act( as inserted by the 2014 Act) which allows the certification of human rights claims made by those liable to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.

CONCLUSION

The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there  are instances of foreign national criminals who having held indefinite leave to remain for  up to 20years with  families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction  of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a  human rights claim if refused is just but a mere hope.

Where certification is applied, this means currently in light of the relatively new appeal provisions,  judicial review claims will be lodged  as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive  accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.

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