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 32(2) of the UK Borders Act 2007 sets out that the automatic deportation provisions apply to those sentenced to a period of imprisonment of at least 12 months and section 38 defines what is meant by “imprisonment”. Section 32 of the UK Borders Act 2007 states as follows:

"Automatic deportation

(1) In this section “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that—

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and

(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—

(a) he thinks that an exception under section 33 applies,

(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or

(c) section 34(4) applies.

(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State."

If a foreign criminal does not meet the automatic deportation threshold, the SSHD can give consideration to whether deportation should be pursued under the Immigration Act 1971 because it would be conducive to the public good.

Exceptions to automatic deportation

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Whilst an exception applies then automatic deportation cannot continue, but this does not necessarily preclude deportation action under the Immigration Act 1971.

  • If deportation would breach the person’s rights under the European Convention on Human Rights (ECHR) or the UK’s obligations under the Refugee Convention then the exception at section 33(2) applies. Where deportation is pursuant to section 32 of the UK Borders Act 2007, asylum and human rights claims must be considered in full before a deportation order can be signed. If there is found to be a breach of the UK’s obligations under the Refugee Convention or of ECHR then deportation under either the UK Borders Act 2007 or the Immigration Act 1971 will not be possible.
  • Section 33(3) provides that a foreign criminal who was under the age of 18 on the date of conviction is exempt from automatic deportation.
  • If a foreign criminal is subject to current extradition proceedings they will be exempt from automatic deportation. Furthermore, foreign criminals held under one of the specified provisions of the Mental Health Act 1983 or associated legislation are not subject to automatic deportation.
  • If automatic deportation would breach the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings ratified by the UK on the 17 December 2008 and implemented from 1 April 2009 then the foreign criminal is exempt from automatic deportation.
  • An individual is also exempt from automatic deportation under section 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.

Foreign criminals excluded from automatic deportation under the UK Borders Act 2007 under section 33 are considered for deportation under the Immigration Act 1971. This is unless they are excluded from automatic deportation on the grounds that their deportation would breach the UK’s obligations under the Refugee Convention or the ECHR. Deportation would not be successful under the Immigration Act 1971.

Decision To Deport And Appeal Against Such Decision

If the SSHD decides that deportation is appropriate then a decision to make a deportation order will be served by the Home Office setting out why the foreign national’s presence is non-conducive to the public good. The notice of deportation must contain consideration of all the information held by the Home Office on the foreign national’s circumstances at the time of the decision. Any outstanding human rights claims should be assessed by the SSHD prior to making the decision to deport but unless they are found to be so compelling as to outweigh the public interest in deportation, full consideration of outstanding claims should be deferred by the Home Office until after the foreign national has had the opportunity to make further representations so that all matters can be considered together.

The decision to deport must inform the foreign national that they may, if they wish, make representations within 20 working days as to why they should not be deported. There should be 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 reasons why the foreign offender should be permitted to remain in the UK including any time there is a change of circumstances, as soon as they occur.

If it is not possible to certify a protection and/or human rights claim under sections 96, 94 or 94B, then the foreign national will have an in-country right of appeal. If the post-decision representations do not raise protection or human rights grounds then there will be no right of appeal against the decision to deport.

A person who has been served with a notice of intention to deport can appeal against such notice within 14 days from the date of receipt of such notice. The notice of appeal must be filed with the First Tier Tribunal where the Immigration Judge will hear the appeal and decide whether or not the deportation is in accordance with the law.

Where the appeal against the deportation notice is successful on the grounds that the deportation will be in breach of the UK's obligation under Article 8 of the ECHR, he may be granted leave to remain for a period not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Such person may be granted an extension of stay for further period of 30 months if an extension of stay is sought before the expiry of such leave.

Why Choose Sunrise Solicitors For Deportation Appeal?

The immigration solicitors at Sunrise Solicitors are experts in dealing with deportation appeals. The quality of our service is self-evident from the reviews of our clients about the service provided by our immigration lawyers. You can contact us if you are seeking legal help from immigration lawyers in London in relation to your deportation appeal against the decision to deport made by the Home Office and our immigration solicitors will provide you fast, friendly, reliable and professional immigration service.

If we are instructed by you to represent you regarding your deportation appeal matter, the immigration casework to be carried out by our immigration solicitors will include the following:

  • Taking detailed instructions from you and advising you about the relevant immigration laws and procedures to be adopted by the First Tier Tribunal in dealing with your deportation appeal;
  • Discussing your deportation appeal matter in detail with you and advising you about the weaknesses and strengths of your deportation appeal;
  • Advising you about possible grounds to appeal against the decision to deport;
  • Advising you about the documentary evidence to be submitted in support of your deportation appeal;
  • Assessing the documentary evidence to be submitted in support of the deportation appeal and discuss the same with you;
  • Completing the relevant appeal form and discussing the same with you;
  • Preparing the grounds of appeal in support of the deportation appeal;
  • Preparing a cover letter to introduce and support the deportation appeal;
  • Submitting the notice of appeal to the First Tier Tribunal with all the supporting documentation and grounds of appeal;
  • Going through the respondent's bundle with you and discussing the same with you;
  • Preparing a detailed witness statement of the appellant and any other witness(es) who will appear in court to give oral evidence;
  • Preparing the indexed and paginated appeal bundles of documents to be submitted in support of the deportation appeal;
  • Arranging a pre-hearing conference with the Barrister who will discuss your case with you and advise you about the court procedures in relation to your deportation appeal;
  • Representations by the instructed Barrister before the Immigration Judge at First Tier Tribunal in your deportation appeal hearing;
  • Doing all the follow up work until appeal determination is received from the First Tier Tribunal.

Our Fee For Deportation Appeal

  • We will charge you a fee from £1,800.00 + VAT for our professional immigration services in relation to your deportation appeal. The agreed fee will depend on the complexity of the matter and the casework involved in the matter.
  • If you cannot afford to pay our fee in full at the time of instructing us in relation to your matter, you can pay half of the fee at the time of instructing us and rest of the fee can be paid by monthly instalments.
  • It is pertinent to note that the agreed fee will not cover any disbursements to be incurred by us on your behalf e.g. Barrister's fee, court fee, translation of documents, Medical Reports etc.

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Sunrise Solicitors is the trading name of Sunrise Solicitors Ltd (company registration no. 6405492). Sunrise Solicitors Offices are regulated by SRA under SRA ID 490903 (London Office) and SRA ID 645256 (Manchester Office). Sunrise Solicitors are also members of Immigration Law Practitioners' Association (ILPA).

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