What’s the difference between deportation and removal?
Deportation is the act of removing an individual “for the public good” and is usually applicable to foreign nationals that have been remanded in custody for a criminal offence or have been convicted of a criminal offence and sentenced to a prison term of over 12 months. At the end of the criminal’s sentence, the Home Office requests for a deportation hearing from the Crown Prosecution Service (CPS). Both EEA and non-EEA nationals can be deported following a criminal offence.
On the other hand, removals, often called administrative removals (also known as ‘removals’), is the act of removing those from the UK that have no right to remain in the UK; namely if the leave to remain has expired or if an application for leave to remain has been refused. These are carried out by the Home Office. Removals may also be carried out if those with leave to remain have breached their immigration conditions, e.g working illegally or overstaying. Like deportation, both EEA and non-EEA nationals can be liable for administrative removals.
A deportation order requires a foreign national, usually with a criminal conviction, to leave the UK. The grounds of deportation can include, according to Part 13 of the Immigration Rules:
- Where the Secretary of State considers the individual’s deportation to be “conducive to the public good and in the public interest”
- Being the spouse, civil partner or child under 18 of a deportee
- Where a court recommends deportation in case of a person over the age of 17 that has been convicted of an offence punishable with imprisonment
The categories of immigration breaches that may result in an administrative removal of a person include:
- Those who are required to have leave to enter or remain in the UK but do not have it (such as overstayers, illegal entrants, and those who refused leave at a port of entry)
- Those who are found to be breaching a restriction or condition of their visa to enter or remain in the UK
- Those who seek or obtain leave by deception
- Those who are family members of a person being removed.
The Home Office must notify those liable for removal and cannot remove the individual during the noticed period. During the notice period, a challenge of the removal order may be carried out; however, after the notice period has expired, the Home Office has a 3 month removal window during which to remove an individual at any point without notice. The notice period for removal is 7 calendar days if the individual is not detained and 72 hours if the individual is detained.
Challenging deportation and removal orders
There is no automatic right of appeal to challenge a deportation order – however, under certain circumstances a person may have the right to appeal to have the deportation order revoked such as under a human rights claim. A deportation order can be appealed by arguing a breach of the UK’s Human Rights Act 1998 obligations through Article 3 where there is a breach of the prohibition of torture or through Article 8 where your right to private and family life has been infringed, or both.
Any such appeal must be made within 28 days outlining the reasons why you should not be deported. However, if a person is in detention, they only have 5 days to appeal.
If the appeal is successful and the deportation order is lifted, non-EEA nationals and who require a visa to enter the UK can apply for entry clearance. EEA nationals and non-visa nationals can arrive at a port and seek ‘leave to enter’.
Removal orders should not be given if individuals have a pending application for leave to remain, if there is a pending asylum claim or if a fresh claim has been submitted and an individual is waiting to hear whether the fresh claim will be accepted.
If there is no right to appeal a decision or if there is no human rights based claim to be made, a deportee can make a judicial review application which includes an injunction to stop the deportation order; this is an ideal option for those facing deportation very soon.
Can I re-enter the UK after being deported or removed?
Generally, it is very difficult to re-enter if a person has been deported or removed from the UK in less than 10 years ago, without the successful revocation of deportation or removal order.
However, if a child who was deported or removed as a family member has reached 18 years of age or if the marriage or civil partnership has come to an end of the spouse or civil partner who was deported or removed as a family member, then such persons can seek to return to the UK without applying for revocation of the deportation or removal order.
How can NA Law help if you are facing deportation or removal?
If you are at risk of being deported or removed and wish to challenge this, NA Law can help you with what is often a distressing and complicated period of time in your life. Our immigration experts can help you get what you deserve and are entitled to.
Contact us today for a case assessment of your situation and to find out how we can help you.