Deportation refers to the process of removing an individual, normally for the purpose of ‘public good’, and is usually applicable to foreign criminals sentenced for over 12 months in the UK. Administrative Removal on the other hand is the process under which individuals are removed from the UK if they have no right to remain in the UK.
The Secretary of State for the Home Department (SSHD) has the discretionary power to make a deportation order by virtue of Section 5 of the Immigration Act 1971. A deportation order requires an individual to leave the UK and prohibits re-entry when the order is still in force. The SSHD may consider deportation in the following scenarios:
- SSHD considers deportation to be ‘conducive to the public good’;
- Individual deported is a member of the family of a deportee;
- Recommended by the court for deportation, in the case of an individual over 17 years old and convicted for an offense punishable with imprisonment.
British citizens and those with the right of abode cannot be deported. The consequences of a deportation order are likely to be profound and life-changing both for the individual who is being deported and for their family members alike. Individuals being issued with deportation orders only have a limited window to challenge this and must take expert legal advice immediately.
Administrative removal refers to the process under which an individual can be removed from the UK by the authority of SSHD or an Immigration officer if they do not have a valid leave to remain in the country. The following group of people faces the risk of removal under this process:
- Individuals failing to adhere to the conditions of their leave;
- Illegal entrants or Overstayers;
- Individuals who obtained or sought to obtain leave by deception;
- Family members of any such people
In most cases, an automatic right to appeal a deportation decision no longer exists. If a person is granted pre-settled status or settled status under the EUSS, or has leave to enter after arriving in the United Kingdom with a valid EUSS Family Permit, and a decision is made to make a deportation order under section 5(1) of the Immigration Act 1971 on or after 11 p.m. on 31 January 2020, the person has the right to appeal.
Deportees, on the other hand, can check to see whether they have any arguable human rights claims under Article 8 of the Hague Convention on Human Rights, which may provide them with a right of appeal if the claim is not found to be clearly unjustifiable. Deportees are often sent a one-stop notice demanding them to disclose all reasons for remaining in the UK that they have not previously stated to the Home Office. This is also an opportunity to register a claim on any other grounds. If the deportee does not have the right to appeal the deportation decision and has not yet filed a human rights or asylum claim, judicial review may be available, particularly if deportation is near and there are arguable grounds.