The Deportation and Exclusion Regime for EEA And Non- EEA Foreign National Criminals: Of Deportation Orders, Exclusion Decisions and Exclusion Orders

The  UK Government  has  over the years (more so since July 2012)  sought to introduce measures   intent upon ensuring  that  foreign national criminals  are  deported or excluded from the UK.  Where deportation appeals are won, the Home Office’s   now predictable  reaction  is an onward appeal,  challenging  allowed Tribunal decisions  and sometimes with success.  Those subject to deportation  therefore cannot afford to  proceed upon  an assumption  that once a deportation appeal  is won, the Secretary  of State will not seek to appeal such  a decision.

The UK Government has  also sought to introduce wider  and tougher measures  in relation to the certification procedure via  Regulation  24AA of the 2006 EEA  Regulations  and Section 94B of  the 2002 Act such that the way forward  for the Government  is  that rather than permit  a person subject to deportation,  a chance to win  that deportation  appeal whilst  inside  the UK,  such foreign  national criminals  are now  on an  increasingly  much wider basis,   expected  to pursue deportation  appeals whilst out of country.

The following issues are  of some  relevance to those  subject to deportation or exclusion, be they  EEA or non – EEA nationals:

  • Liability to deportation;
  • Effect of exclusion decisions and exclusion orders;
  • Rights of appeal;
  • Certification of claims in deportation cases;
  • Effect of rehabilitation in deportation cases;
  • Revocation of deportation orders/exclusion decisions/exclusion orders;
  • Effect of successful deportation appeals.

(1)LIABLITY TO DEPORTATION

  • Liability to Deportation- Non EEA Foreign National Criminals:

Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if  the Secretary of State deems his deportation to be conducive to the public good.

Section 32(4) and (5) of the UK Borders Act 2007  provides that, subject to Section 33, the Secretary of State must make a deportation order in respect of a “foreign criminal.   The definition of a foreign criminal is set out at Section 117D(2) of  NIAT 2002 Act and means a person who is not a British citizen, who has been convicted in the UK of an offence, and who has been sentenced to a period of imprisonment of at least 12 months, or has been convicted of an offence that has caused serious harm, or is a persistent offender.

Section 33 of the 2007 Act  provides that section 32(4) and (5) do not apply where the removal of the foreign criminal in pursuance of the deportation order would breach his Convention rights.

Paragraph  363  of the Immigration  Rules provides that the  circumstances in which a person is liable to deportation include:

  • 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.

Until Rules 398, 399 and 399A  were introduced into the Immigration Rules HC 395 in 2012, the question   regarding the circumstances in which  the deportation of a foreign national criminal  would be contrary to Article 8 of the European Convention on Human Rights( ECHR)  was governed entirely by case law. The new rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed.

Para A362 of the Immigration Rules  provides that where  Article 8 of the ECHR  is raised in the context of deportation under Part 13 of the Rules, the claim under Article 8 will only succeed where the requirements of the rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.

Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 set out the correct approach to considering ECHR Article 8 claims. The  Home Office  consider that Parliament has set out its view of the public interest in Article 8 claims from foreign criminals in sections 117B and 117C of the 2002 Act. A foreign criminal’s claimed private and/or family life must therefore be assessed and balanced against Parliament’s view of the public interest to determine whether deportation would breach Article 8.

The  Immigration Rules in Part 13 provide:

  • Criminality Threshold- Paragraphs A398 and 398 of the Immigration Rules provide that where :

(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b) a foreign criminal applies for a deportation order made against him to be revoked.

  1. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

Paragraph 398 of the Immigration Rules sets out the criminality thresholds. An Article 8 claim from a foreign criminal who has not been sentenced to at least four years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at paragraph 399A.

An Article 8 claim from a foreign criminal who has been sentenced to at least four years’ imprisonment will only succeed where there are very compelling circumstances over and above the circumstances described in the exceptions to deportation at paragraphs 399 and 399A.

  • Qualifying Child and Partner, Family Life Exceptions to Deportation- Paragraph 399 of the Immigration Rules applies where paragraph 398 (b) or (c) applies if –

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

  • Private LifeExceptions to Deportation, Paragraph 399A, of the Immigration Rules. This paragraph applies where paragraph 398(b) or (c) applies if :

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

Paragraphs 398 to 399A of the Immigration Rules therefore set out when a foreign criminal’s private and/or family life will outweigh the public interest in deporting him.

Where a foreign criminal does not  have a qualifying partner or a qualifying child then the family life exceptions to deportation at paragraph 399 of the Immigration Rules do   not apply even if the foreign criminal has not been sentenced to a period of imprisonment of four years or more. In such a case, paragraph 398 sets out that the Article 8 claim will only succeed where there are very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules.

Once a foreign criminal has been sentenced to a period of at least four years’ imprisonment, he will never be eligible to be considered under the exceptions.

The relevant Guidance Policy  is, “The  Immigration Directorate Instructions : Chapter 13 – Criminality Guidance in Article 8 ECHR Cases V5.0 (28 July 2014)”.

  • Liability to Deportation – EEA Nationals 

The Immigration Rules and Part 5A of the 2002 Act do not apply directly to EEA nationals.

Deportation of EEA nationals and their family members must be considered under the Immigration (European Economic Area) Regulations 2006. Under Regulation 21 of the Regulations, EEA nationals can only be deported from the UK on the following grounds

  • public policy
  • public security
  • public health

The Home Office must be satisfied the person’s conduct represents a genuine, present and sufficiently serious threat which affects one of these fundamental interests of society.

Regulation 2 of the EEA Regulations provides that a “deportation order” means an order made pursuant to Regulation 24(3).

Regulation 2(1) provides that an “exclusion order” means an order made under regulation 19(1B).

  • Regulation 19(3):Refusal of Admission and Removal etc provides:

19. (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.

(1A) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if that person is subject to a deportation or exclusion order, except where the person is temporarily admitted pursuant to regulation 29AA.

(1AB) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if the Secretary of State considers there to be reasonable grounds to suspect that his admission would lead to the abuse of a right to reside in accordance with regulation 21B(1).

(1B) If the Secretary of State considers that the exclusion of an EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 21 the Secretary of State may make an order for the purpose of these Regulations prohibiting that person from entering the United Kingdom.

(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if

(a)that person does not have or ceases to have a right to reside under these Regulations;

(b)the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21; or

(c)the Secretary of State has decided that the person’s removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).

(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.

(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21”.

  • Regulation 24(3) Person subject to removal provides:

“(3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act(16) (liability to deportation) applied, and section 5 of that Act(17) (procedure for deportation) and Schedule 3 to that Act(18) (supplementary provision as to deportation) are to apply accordingly”.

  • Regulation 21-Decisions taken on public policy, public security and public health grounds provides :

“(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a)has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(11).

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

(a)the decision must comply with the principle of proportionality;

(b)the decision must be based exclusively on the personal conduct of the person concerned; (c)the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d)matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)a person’s previous criminal convictions do not in themselves justify the decision.

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin

(7) In the case of a relevant decision taken on grounds of public health—

(a)a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation(12) or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010 shall not constitute grounds for the decision; and

(b)if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision”.

The relevant   Guidance Policy is, European Economic Area (EEA) foreign national offender (FNO)

casesV4.0 Published for Home Office staff on 06 October 2015”.

(2)EXCLUSION DECISIONS  AND EXCLUSION ORDERS

Exclusion decision: Non – EE nationals:

 An exclusion decision can be made against a non-European Economic Area national. Exclusion prohibits a person entering the UK if their presence in the UK is deemed not to be conducive to the public good. The power to exclude a person from the UK is currently exercised by the Home Secretary. It is a non-statutory power and potentially very broad. The exclusion remains in place until it is revoked by the Home Secretary.

Decisions on whether a person should be excluded are made by the Home Secretary acting in person. This power is not delegated to officials and each decision requires a submission. The submission must set out what makes that person’s presence in the UK undesirable, along with any compassionate factors that need to be taken into account.

The Home Secretary needs to be satisfied the individual’s presence in the UK would not be conducive to the public good (for example, on the grounds of criminal conviction). This is a similar consideration to the one taken when deciding whether to pursue deportation on conducive grounds. The decision maker must balance the public interest in preventing the individual returning to the UK against any compassionate circumstances of the case.

Although there is no time limit on exclusion, its purpose is to replicate the effect of deportation, and prevent the excluded person from returning to the UK for a similar period if they were deported. An exclusion decision continues to apply until it is revoked by the Home Secretary. Applications for visas or for entry at a port must be refused.

Paragraph 320(6) of the Immigration Rules provides a mandatory refusal of entry clearance or leave to enter if the person is the subject of an exclusion decision.

Although it is not an offence for the subject of an exclusion decision to enter the UK while the decision is still in force, the home office must determine how the individual obtained entry. If material deception was used (for example, a forged passport or a false identity) the person is removed as an illegal entrant.

The  relevant Policy Guidance is, “ Exclusion decisions and exclusion orders – v5.0 Valid from 29 January 2014”.

  • Exclusion Order: EEA Nationals:  
On 1 June 2009 the Immigration (European Economic Area) (Amendment) Regulations 2009 (SI 2009 No 1117) came into force (amending the Immigration (Economic Area) Regulations 2006 (SI 2006 No 1003). This allows the Home Secretary to exclude EEA nationals and members of their families by making an exclusion order. The relevant provision is Regulation 19(1B) of the 2006 Regulations (as inserted by paragraph 6 (a) of the 2009 Regulations).

Under Regulation 19(1B) of the EEA Regulations 2006, as amended, the Secretary of State can make an exclusion order against an EEA national or their family members on the grounds of public policy, public security or public health.  An exclusion order can only be made against a person who is outside the UK. The effect of the order prohibits the person’s admission to the UK. The exclusion remains in place until it is revoked by the Home Secretary. The test is higher than the one for non-EEA nationals, as the Home Secretary needs to be satisfied the EEA national constitutes a threat to public policy, public security or public health.

Regulation 21 (5) of the 2006 Regulations sets out the threshold that needs to be met before an EEA national, or member of their family, can be excluded

Although an exclusion order can only be made against a person who is outside the UK at the time, there may be cases where an EEA national or family member is resident in the UK despite being abroad at the time the order is made. In these circumstances, the considerations set out in regulation 21(6) must be taken into account.

If an EEA national or family member acquires a right to reside permanently in the UK (under regulation 15 of the 2006 Regulations) an exclusion order can only be made on serious grounds of public policy or public security.

A continuous period of 10 years’ residence means an exclusion order can only be made on imperative grounds of public policy or public security.

Article 30 of the Free Movement Directive requires a person to be notified in writing ‘precisely and in full’ of any decision taken against them on grounds of public policy or public security.

If a person who is being considered for exclusion holds a valid registration certificate, residence card, document certifying permanent residence or permanent residence card, the document must be revoked on grounds of public policy or public security in line with the decision to make an exclusion order. Where the holder is in the UK, a decision to revoke any of these documents allows the person to appeal in UK (in-country). In exclusion order cases the person must be outside the UK when the decision to revoke is taken.

As permitted by Article 31(4) of the Free Movement Directive, the UK may:

  • exclude a person from its territory pending an appeal, and
  • prevent the person from submitting their defence in person, if their appearance might cause serious troubles to public policy or public security or where the appeal concerns a denial of entry to the territory.

Although the appeal against the revocation decision may not directly concern a denial of entry to the UK, the exclusion decision clearly does. In certain cases it is also likely the risks to public policy or public security justify preventing the person from appealing in UK. If the person manages to return to the UK and is either encountered at port or inside the UK, they can exercise an in the UK (in-country) right of appeal against revocation.

The  relevant Policy Guidance is, “ Exclusion decisions and exclusion orders – v5.0 Valid from 29 January 2014”.

(3)RIGHT OF APPEAL

  • Rights of Appeal – Non EEA Nationals:

The new framework for appeals established by the Immigration Act 2014 against refusal of protection and human rights claims  came fully into force on 6 April 2015. However there were saving provisions made in the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 to protect certain persons who had rights of appeal at the time they applied for leave to enter or remain.

The appeals regime changed for some deportation cases prior to 6 April 2015.

In accordance with the Immigration Act 2014 (Commencement No. 3, Transitional  and Saving Provisions) Order 2014, the post-Immigration Act 2014 appeals regime applied to the following individuals from 20 October 2014:

  • a person who becomes a foreign criminal within the definition in section 117D(2) of the 2002 Act on or after 20th October 2014;
  • a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act because they belong to the family of the person.

By virtue of the Immigration Act 2014 (Transitional and Saving Provisions)

Order 2014, the post-Immigration Act 2014 appeals regime applied to any decision to make a deportation order, decision to refuse to revoke a deportation order, or decision made under section 32(5) of the UK Borders Act 2007 made on or after 10 November 2014 in respect of:

  • a person who is a foreign criminal within the definition in section 117D(2) of the 2002 Act;
  • a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act because they belong to the family of the person .Rights of appeal exist against the following decisions:
  •  Refusal of a human rights or protection claim and revocation of protection status. These appeal rights are in Part 5 of the Nationality, Immigration and Asylum Act 2002.
  • Refusal of entry clearance and refusal to vary leave to remain, in some situations, where the application was made before the Immigration Act 2014 was in force.
  • Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006.
  • Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.

The relevant Policy Guidance are:

  • Rights of Appeal, Version 3.0;
  • Appeals policy – version v2.0 Valid from 2 March 2015

The  Immigration Directorate Instructions : Chapter 13 – Criminality Guidance in Article 8 ECHR Cases V5.0 (28 July 2014) specifically provides:

“2.8 Case law

2.8.1 Decision-makers must not make decisions on the basis of case law established before commencement of section 19 of the Immigration Act 2014 (28 July 2014) or refer to such case law in decision letters. Decisions must be taken solely on the basis of the Immigration Rules, which Part 5A of the 2002 Act underpins. The courts will develop new case law in relation to the public interest statements”.

  • Right of Appeal: EEA Nationals:

Under section 109 of the 2002 Act, regulations can be made to provide for an appeal against an EEA decision. The Immigration Act 2014 makes no specific provision for appeals against EEA decisions.

An EEA decision made before 6 April 2015 is governed by the (EEA regulations pre-6/4/15).

An EEA decision made on or after 6 April 2015 will be governed by the revised EEA regulations.

The EEA regulations have been amended to reflect the legal position as set out in the Immigration Act 2014 for asylum, protection and human rights claims.

A person served with an EEA decision may appeal against that decision to the First Tier Tribunal.

Under regulation 26 of the  EEA Regulations there is a right of appeal where a European Economic Area (EEA) decision has been made. An EEA decision means a decision under the Regulations that concerns:

  • a person’s entitlement to be admitted to the UK;
  • a person’s entitlement to be issued with or have renewed, or not have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;
  • a person’s removal from the UK;
  • the cancellation pursuant to regulation 20A, of a person’s right to reside in the UK

But an EEA decision does not include decisions under Regulations 24AA (non-suspensive appeal certifications) or 29AA (readmission to admit case in person following non-suspensive removal).

The EEA Regulations state that someone who may bring an appeal under those Regulations may also bring a separate appeal under section 82 of the 2002 Act (as amended), for example against the refusal of an asylum or human rights claim, provided they meet the relevant criteria, which now requires them to have made a claim which has been refused.

The relevant  Policy Guidance are:

  • Rights of Appeal, Version 3.0;
  • Appeals policy – version v2.0 Valid from 2 March 2015;
  • EEA case law and appeals – v2.0 Published for Home Office staff on 24 September 2015

•         Right of Appeal: Exclusion Decision:

Exclusion is not an immigration decision, as defined by Section 82 of the Nationality, Immigration and Asylum Act 2002, and does not have a right of appeal. Non-EEA foreign nationals who are excluded by the Home Secretary may request a judicial review of the decision. There may be a non-suspensive right of appeal against the refusal of entry clearance or leave to enter (depending on the nature of the application) which, in the case of those seeking entry, can be brought in country by raising human rights and/or asylum issues.

•         Right of Appeal: Exclusion order:

A person has the right to appeal against a decision to make an exclusion order against them (under Regulation 26) but that right of appeal can only be exercised outside of the UK (regulation 27(1)(aa)), subject to  exceptions.  If the person is in the UK whilst an appeal could be brought, having entered or sought to enter in breach of the order, they will be entitled to appeal from within the UK if they

•         hold a valid European Economic Area (EEA) family permit, registration certificate, residence card, document certifying permanent residence or permanent residence card on their arrival in the UK, or can otherwise prove they were resident in the UK (regulation 27(2)(a));

•         were detained, or temporarily admitted or released, while liable to detention but on the date the notice of the decision to refuse to admit them is served they have been in the UK for at least three months (regulation 27(2)(b)), they appeal against the decision on human rights or asylum grounds, unless the Secretary of State certifies the ground of appeal is clearly unfounded (regulation 27(2)(c))

(4)CERTIFICATION OF CLAIMS

  • Section 94B Certification for Non- EEA Nationals:

Section 17(3) of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002 to introduce a discretionary certification power in relation to human rights claims made by those liable to deportation under sections 3(5)(a) and 3(6) of the Immigration Act 1971.

Section 94B of the Nationality, Immigration and Asylum Act 2002 allows a human rights claim to be certified where the appeals process has not yet begun or is not yet exhausted and the Secretary of State considers that removal pending the outcome of an appeal would not breach section 6 of the Human Rights Act 1998. One ground upon which the Secretary of State may certify a claim under section 94B is that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return.

The result of section 94B certification is that the right of appeal against the decision to refuse the human rights claim is non-suspensive, meaning it is not a barrier to removal. Any appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, while the person is outside the UK.

The 2006 EEA Regulations have also been changed to allow non-suspensive appeals in certain EEA cases to reflect the provision in the Free Movement Directive, although the power is different.

The leading judgment on section 94B  is Kiarie & Byndloss v SSHD [2015] EWCA Civ 1020, handed down by the Court of Appeal on 13 October 2015.

Certification decisions are challengeable  by way of judicial review.

The relevant policy Guidance is  “Section 94B of the Nationality, Immigration and Asylum Act 2002, Version 5, 30 October 2015”.

  • Regulation 24AA Certification for EEA Nationals:

Regulation 24AA contains a certification power which sets out circumstances in which a person liable to deportation may be removed from the UK before the conclusion of the appeal process.

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2014 amended the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under Regulation 19(3)(b) of the EEA Regulations no longer suspends removal proceedings, except where:

  •  the Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined.
  • the person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK, rather, by amending Regulation 29 of the EEA Regulations, it removes the suspensive effect of that appeal. So, whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK. The new Regulations also do not impact on the period allowed for voluntary departure, and a person liable to deportation pursuant to the EEA Regulations still has 30 days in which to leave the UK voluntarily before their removal is enforced, save in duly urgent cases.

Therefore, regulation 24AA applies to:

  • a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined;
  •  a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK (this does not include out of time appeals).

The amended EEA Regulations also allow a person who was deported under Regulation 19(3)(b) before their appeal is finally determined, to apply from out of country for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing.

Certification decisions are challengeable  by way of judicial review.

The relevant Policy Guidance is, “Regulation 24AA certification guidance for European Economic Area deportation cases, Version 2.0 , 20 October 2014”.

(5)DEPORTATION AND  REHABILITATION

Non – EEA foreign nationals are treated differently  when it  comes to whether  matters of rehabilitation should be taken into account however there is some  recent indication  that in some cases rehabilitative factors  could be relevant.

In a non – EEA deportation appeal case, the Court of Appeal in Danso v Secretary of State for the Home Department [2015] EWCA Civ 596 (11 June 2015), observed:

“Rehabilitation and the risk of further offending

19.The other two factors on which Mr. Dixon relied, rehabilitation and the risk of further offending, may also conveniently be considered together. There was evidence before the First-tier Tribunal that the appellant had undergone various courses while in prison designed to address aspects of his offending and it also had before it a number of reports dealing with the likelihood of his re-offending, dating from March 2009 to August 2011. The most recent report available to the Upper Tribunal (though not to the First-tier Tribunal) was that produced by a consultant forensic psychologist, Lisa Davies, in June 2012. She expressed the opinion that an assessment of the appellant as posing a medium risk of committing further sexual offences probably over-stated the position and agreed that the risk of further violent offending on his part was low.

20.Mr. Dixon submitted that the tribunal should have placed much greater weight on the appellant’s rehabilitation and the fact that he did not pose a significant risk of re-offending. He suggested that far too little importance is attached to factors of that kind, with the result that those who commit offences have little incentive to co-operate with the authorities and make a positive effort to change their ways. I have some sympathy with that argument and I should not wish to diminish the importance of rehabilitation. It may be that in a few cases it will amount to an important factor, but the fact is that there is nothing unusual about the appellant’s case. Most sex offenders who are sentenced to substantial terms of imprisonment are offered courses designed to help them avoid re-offending in future and in many cases the risk of doing so is reduced. It must be borne in mind, however, that the protection of the public from harm by way of future offending is only one of the factors that makes it conducive to the public good to deport criminals. Other factors include the need to mark the public’s revulsion at the offender’s conduct and the need to deter others from acting in a similar way. Fortunately, rehabilitation of the kind exhibited by the appellant in this case is not uncommon and cannot in my view contribute greatly to the existence of the very compelling circumstances required to outweigh the public interest in deportation.

In Secretary of State v Dumliauskas [2015] EWCA Civ 145 , the Court of Appeal stated from paragraph 44 :

“Lastly, I refer to what my Lord Jackson LJ said in SE Zimbabwe v Secretary of State for the Home Department [2014] EWCA Civ 256 [2014] Imm AR 4:

It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE’s good progress to date in rehabilitation. The tribunal treated that as a factor in SE’s favour.

The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration) [2013] UKUT 316 (IAC). This was a decision concerning EU citizens who committed offences and were being considered for deportation. Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend. Accordingly, if the offender’s rehabilitation is incomplete, it is relevant to consider the offender’s prospects of future rehabilitation (a) if he is deported to his home state and (b) if he remains in the host state.

I agree with that analysis. The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime.

What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national. I agree with that proposition.

SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.

From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:

“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.”

In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life”.

MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC) provides:

 Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.

It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).

 There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) ( Essa (2013) at [23]).

 Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at [32]-[33])

Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime ( Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation

Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauska

 Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas.

Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]-[53] and [59]).

Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55]

In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54]).

Having regards however to the Court of Appeal decision in Secretary of State v Dumliauskas [2015] EWCA Civ 145  and now recently the Upper Tribunal, in MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC), the courts and tribunal have sought to make it clear that substantial focus on prospects of rehabilitation in EEA deportation appeals almost to the exclusion of other factors in considering proportionality of deportation should now be a thing of the past.

(6)REVOCATION OF DEPORTATION AND

  • Revocation of Deportation order, Non – EEA National:

An applicant who has previously been deported from the UK at any time must apply in writing for a revocation of the Deportation Order and wait for the outcome of the revocation request before they can travel to the UK (if a non-visa national) or before applying for an entry clearance (if a visa national). An application for entry clearance from a person with an extant Deportation Order will be refused automatically. Entry in breach of a Deportation Order is a criminal offence under section 24 (1) (a) of the 1971 Act. Any leave acquired prior to the Deportation Order is invalid.

Applications for the revocation of a Deportation Order can be made at any time. The Deportation Order must be revoked in order for the applicant to lawfully travel to the UK. Paragraph 392 of the Immigration Rules states that applications for the revocation of a Deportation Order can be submitted either to the Entry Clearance Officer or direct to the Home Office.

Applications for a Deportation Order to be revoked take the form of a letter from the deportee.

If an application for a revocation of a Deportation Order is received at post it should be forwarded onto the following address: Document Management Centre Lunar House 40 Wellesley Road Croydon Surrey CR9 2BY.

A person can apply at any time for revocation of a Deportation Order made against them.

The Immigration Rules  in Part 13  provide:

“Revocation of deportation order

  1. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

390A. Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.

  1. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:

(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or

(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,

Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.

391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.

  1. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office”.

Until recently, Section 82(k) of the Nationality, Immigration and Asylum Act 2002 provided that a decision to refuse to revoke a Deportation Order attracted a right of appeal. However any decision to refuse to revoke made on or after 10 November 2014 is subject to Section 82 as amended by the Immigration Act 2014. This means that:

  • any decision to refuse to revoke a deportation order, where the person has already been deported, made prior to 10 November 2014 will attract a right of appeal;
  • any decision to refuse to revoke a deportation order made on or after 10 November 2014 will not attract a right of appeal unless there is also an associated decision to refuse a protection claim, refuse a human rights claim or revoke protection status. Where the person has already been deported, only a decision to revoke a non-protection human rights claim will be relevant.

Relevant policy Guidance is “ECB04: Deportees, Updated 24 April 2015”. https://www.gov.uk/government/publications/who-needs-an-entry-clearance-ecb04/ecb04-who-needs-an-entry-clearance

  • Revocation of Deportation Orders : EEA Nationals:

Regulation 24(4) of the 2006 EEA Regulations:Person subject to removal, provides:

“(4) A person who enters the United Kingdom in breach of a deportation or exclusion order, or in circumstances where that person was not entitled to be admitted pursuant to regulation 19(1) or (1AB), shall be removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule shall apply accordingly”.

EEA nationals are free to enter the UK subject to a passport or identity card check. However, where an EEA national is the subject of an extant deportation order, the EEA national must  apply for revocation of the order if they wish to return to the UK. If the deportation order is revoked the EEA national may lawfully re-enter the UK.

Regulation 24A of the EEA Regulations Revocation of deportation and exclusion orders provides:

“(1) A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this regulation.

(2) A person who is subject to a deportation or exclusion order may apply to the Secretary of State to have it revoked if the person considers that there has been a material change in the circumstances that justified the making of the order.

(3) An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.

(4) On receipt of an application under paragraph (2), the Secretary of State shall revoke the order if the Secretary of State considers that the criteria for making such an order are no longer satisfied.

(5) The Secretary of State shall take a decision on an application under paragraph (2) no later than six months after the date on which the application is received”.

Relevant policy Guidance is “ECB04: Deportees, Updated 24 April 2015”. https://www.gov.uk/government/publications/who-needs-an-entry-clearance-ecb04/ecb04-who-needs-an-entry-clearance

  • Exclusion Decision, Revocation Non – EEA National :
There is no formal process for applying for the revocation of an exclusion decision.

Home Office policy is that,  the use of exclusion in criminal cases is designed to replicate the effect of deportation by stopping foreign national offenders  from returning to the UK for a similar period, as if they had been deported. In line with policy on the revocation of deportation orders, decision makers are directed  to  refuse applications unless:

 10 years have passed for sentences of less than 30 months;

 the sentence imposed was 30 months or more;

 refusal would result in a breach of  obligations under the European Convention of Human Rights or the Convention and Protocol Relating to the Status of Refugees, or

 the applicant’s circumstances have changed significantly since the exclusion decision was made.

When considering the revocation of an exclusion decision, the home office must consider all circumstances surrounding the cases and these include the grounds on which the exclusion decision was made; representations made to support the request for revocation; interest of the community including the maintenance of an effective immigration control and prevention of further crime (and the victim).

The policy for considering applications to revoke exclusion for cases that meet the deportation criteria is set out in paragraphs 390-391 of the Immigration Rules.

If a conviction is capable of being ‘spent’ under the Rehabilitation of Offenders Act 1974 (sentenced to 30 months or less) continued exclusion for a period of no less than 10 years since the making of the exclusion decision is appropriate.

If a criminal conviction can never be spent (sentences of 30 months or more) continued exclusion from the UK is appropriate.

Applications for revocation must be refused unless this would be in breach of the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees; the situation has changed significantly since the exclusion decision was made  or fresh information not available at the time of the decision shows a significant change in circumstances.
For considerations to revoke exclusion decisions where the person does  not meet the criteria for deportation, paragraph 320(7)(B)(iv) of the Immigration Rules provides for a mandatory refusal of entry clearance for a minimum of two years for persons who left the UK under the terms of a government sponsored scheme, such as the facilitated return scheme:

– within six months of the date when they were given notice of the removal decision, or

-no more than six months after the date when the person no longer had a pending appeal, whichever is the later.

Otherwise the minimum period for mandatory refusal is five years.

Under paragraph 320(7)(C) these exclusion periods do not apply if entry is being sought:

-as a spouse, civil or other partner

-as a parent, grandparent or other dependent relative for access to a child, or

-where the person was under 18 at the time of their last breach of the rules.

Even where paragraph 320(7) (C) applies, the application must still meet the requirements of the rules for entry in that category. Entry may also be refused on the grounds it is conducive to the public good under rule 320(19) on the basis of a previous breach of the rules and in the case of foreign national offenders, their offence(s).

As a matter of policy however for the home office  to make sure there is consistency with other non-criteria cases leaving under the terms of facilitated return scheme, the minimum period before an exclusion decision is revoked replicates the provisions of the relevant Immigration Rules. Therefore, in non-criteria cases, continued exclusion is appropriate where less than two or five years (depending on when the person left the UK) has passed since the exclusion decision was made.

Consideration must be given to the individual facts of each case, including:

-the impact on article 8 of the European Convention of Human Rights on any family in the UK, but not on the applicant as article 8 is not extra-territorial, and

-any reasons why the family cannot join the FNO in their home country.

Applications will be refused unless refusing to revoke the exclusion decision would result in:

-a breach of the Home Office’s obligations under the European Convention of Human Rights or the Convention and Protocol Relating to the Status of Refugees, or

-the applicant’s circumstances have changed significantly since the exclusion was made.

An exclusion decision properly taken in respect of a non-EEA national ceases to have effect if the individual becomes the husband, wife or partner of an EEA national or becomes an EEA national or dual EEA national. Consideration must be given to whether an exclusion order must be made under the EEA regulations. This is a higher test than for non-EEA cases and cannot be based solely on the person’s previous criminality. It must demonstrate the person’s exclusion on public policy is justified on the grounds they represent a genuine, present and sufficiently serious threat as set out in regulation 21(5) (c) of the Immigration (EEA) Regulations 2006. If revocation of an exclusion decision is recommended, a submission must be sent to the Home Secretary through the usual channels to seek authority to revoke that decision. In cases where the person now benefits under the terms of the EEA regulations the submission must explain why exclusion under the terms of the EEA regulations is justified, or if not the reasons why.

If agreed, the normal process for notifying the applicant or their representative must be followed.

Requests to revoke an exclusion decision from outside the UK can be made at any time to the Home Office or entry clearance post abroad by the person excluded or their representative.

The revocation must be successful to make it possible to lawfully return to the UK. Even where an exclusion decision has been revoked, return to the UK is not an automatic right. Visa nationals still require a visa to return to the UK. Non-visa nationals still need to satisfy Border Force officers they meet the requirements of the rules, or in the case of EEA nationals and their dependants they are exercising Treaty Rights.

There are no formal application forms to be completed when requesting revocation of an exclusion decision. Requests can be submitted directly to criminal casework.

  • Revocation of Exclusion Orders- EEA National ;

Regulation 24(4) of the EE 2006 Regulations :Person subject to removal:

“(4) A person who enters the United Kingdom in breach of a deportation or exclusion order, or in circumstances where that person was not entitled to be admitted pursuant to regulation 19(1) or (1AB), shall be removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule shall apply accordingly”.

Regulation 24A of the Regulations 2006, as amended, stipulates the exclusion order remains in force until it is revoked, but also contains provisions to allow the Home Secretary to revoke an exclusion order where appropriate and an application for revocation is made. A refusal to revoke an exclusion order attracts a right of appeal (under regulation 26 of the Immigration (EEA) Regulations 2006) but that appeal may only be brought from outside the UK (regulation 27(1)(b).

There is no formal process for applying for the revocation of an exclusion order.

Home Office policy is that,  the use of exclusion in criminal cases is designed to replicate the effect of deportation by stopping foreign national offenders  from returning to the UK for a similar period, as if they had been deported. In line with policy on the revocation of deportation orders, decision makers are directed  to  refuse applications unless:

  •  10 years have passed for sentences of less than 30 months;
  •  the sentence imposed was 30 months or more;
  •  refusal would result in a breach of  obligations under the European Convention of Human Rights or the Convention and Protocol Relating to the Status of Refugees, or
  •  the applicant’s circumstances have changed significantly since the exclusion decision was made.
Requests to revoke an exclusion order, from outside the UK can be made at any time to the Home Office or entry clearance post abroad by the person excluded or their representative.

The revocation must be successful to make it possible to lawfully return to the UK. Even where an exclusion decision has been revoked, return to the UK is not an automatic right. Visa nationals still require a visa to return to the UK. Non-visa nationals still need to satisfy Border Force officers they meet the requirements of the rules, or in the case of EEA nationals and their dependants they are exercising Treaty Rights.

(7)SUCCESSFUL  DEPORTATION APPEAL

  • Non -EEA Foreign National Criminals:

Paragraphs 399B and 399C set out the provisions for granting leave to remain where an Article 8 claim succeeds.

When an Article 8 claim for a foreign  national criminal  is successful, Paragraphs 399B to 399D of the  Immigration Rules  provide:

“(a) in the case of a person who is in the UK unlawfully or whose leave to enter or remain has been cancelled by a deportation order, limited leave may be granted for periods not exceeding 30 months and subject to such conditions as the Secretary of State considers appropriate;

(b) in the case of a person who has not been served with a deportation order, any limited leave to enter or remain may be curtailed to a period not exceeding 30 months and conditions may be varied to such conditions as the Secretary of State considers appropriate;

(c) indefinite leave to enter or remain may be revoked under section 76 of the 2002 Act and limited leave to enter or remain granted for a period not exceeding 30 months subject to such conditions as the Secretary of State considers appropriate;

(d) revocation of a deportation order does not confer entry clearance or leave to enter or remain or re-instate any previous leave.

399C. Where a foreign criminal who has previously been granted a period of limited leave under this Part applies for further limited leave or indefinite leave to remain his deportation remains conducive to the public good and in the public interest notwithstanding the previous grant of leave.

399D. Where a foreign criminal has been deported and enters the United Kingdom in breach of a deportation order enforcement of the deportation order is in the public interest and will be implemented unless there are very exceptional circumstances”.

Relevant Guidance Policy is  “The  Immigration Directorate Instructions : Chapter 13 – Criminality Guidance in Article 8 ECHR Cases V5.0 (28 July 2014)”.

  • EEA Foreign National Criminals:

Where an appeal is successful against deportation, the Secretary of State usually issues a warning letter to the EEA and also clarifying that they not considered suitable for deportation at that present time.

CONCLUSION

The  provisions,  procedures and caselaw  relating to deportation cases  and  appeals  are  complex and there   appears  to be  never ending  litigation  regarding one provision or the other  in this area either from  the Secretary  of State or from  appellants subject to deportation.

It is  doubtful  that even  with the current  tough deportation  provisions in place,   one can  conclude  that the UK Government  will  ever be half-way  satisfied that they  have done enough to  ensure speedier   deportation or exclusion of foreign  national criminals from the UK

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