Immigration Directorate Instructions
Deporting non-EEA foreign nationals
Version 3.1
April 2015
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Contents
Section 1
1.1
Introduction
1.2
Process
Section 2: UK Borders Act 2007
2.1
Criteria
2.2
Definition of Imprisonment in the UK Borders Act 2007
2.3
Foreign Criminals who do not meet the criteria for automatic deportation
2.4
Exceptions to automatic deportation
2.5
Additional exemptions
2.6
Exceptions apply
2.7
Making a decision to deport under the UK Borders Act 2007
2.8
Detention
Section 3: Immigration Act 1971
3.1
Introduction
3.2
How to consider if deportation is appropriate
3.3
Court recommended
–
section 3(6)
3.4
Deporting family members of foreign nationals
–
section 3(5)(b)
3.5
Exemption criteria
–
section 7 of the 1971 Immigration Act
3.6
British citizens
Section 4: Decision to make a deportation order
4.1
Making a decision to make a deportation order
4.2
Outstanding applications for limited/indefinite leave to enter/remain under the
Immigration Rules
4.3
Detention
Section 5: Representations and obtaining the deportation order
5.1
Consideration of representations and right of appeal
5.2
Certification of asylum and/or human rights claims
5.3
Post deportation order representations
Section 6: Deportation is not possible
6.1
Revocation of ILR
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Section 1
1. Introduction
This guidance tells you how to decide if a non- EEA foreign national should be considered for
deportation under the:
UK Borders Act 2007
1971 Immigration Act
1.1.2 Any queries about this guidance should be sent to the Criminality Policy Guidance
Queries inbox.
1.1.3 Guidance for deporting EEA nationals can be found in the
European Economic Area
(EEA) foreign national offender cases guidance
on Horizon.
1.1.4 Guidance on how to administratively remove foreign nationals who are liable to removal
under section 10 of the
Immigration & Asylum Act 1999
or section 47 of the
Immigration, Asylum
and Nationality Act 2006
can be found in the EIGs. See
51 Administrative removal
.
1.2 Process
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Section 2
2. UK Borders Act 2007
2.1 Criteria
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.
2.1.2 Foreign criminals who have been convicted and/or sentenced before 1 August 2008
may still be subject to automatic deportation as long as they meet the criteria above.
2.2 Definition of imprisonment in the UK Borders Act 2007
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
”
. See
section 32(2)
and
section 38
.
2.2.2 Sentences given in days or weeks
Sometimes sentences are given in days or weeks instead of the more familiar months or
years. The following will help you determine whether the sentence is at least 12 months.
The interpretation for 12 months in section 32 is a period of 12 calendar months. A month for
the purposes of this legislation is a calendar month as defined by the
Interpretation Act 1978
.
A period of imprisonment of 12 months consists of 365 days (unless it is a leap year, in which
case it is 366) and ends on the corresponding date in the 12
th
month. A period of imprisonment
of 52 weeks does not amount to 12 months, because a week consists of seven consecutive
days, as per its ordinary meaning, and so amounts only to 364 days.
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2.2.3 Indeterminate sentences
Imprisonment for at least 12 months includes where a person is sentenced to imprisonment or
detention, or ordered or directed to be detained, for an indeterminate period (provided that it
may last for at least 12 months).
2.2.4 Suspended sentences
Imprisonment for at least 12 months does not include suspended sentences unless a court
subsequently orders that the sentence or any part of the sentence, regardless of length, is to
take effect. In these circumstances, if the original suspended sentence was for at least 12
months, then the case should be considered under the UK Borders Act 2007.
2.2.5 Other types of imprisonment
Imprisonment due to the default of payment of compensation or a fine does not amount to a
sentence of imprisonment for the purposes of the UK Borders Act 2007.
2.2.6 Imprisonment other than in a prison
Imprisonment for at least 12 months includes where a person is sentenced to detention, or
ordered or directed to be detained in an institution other than a prison, including a hospital or
an institution for young offenders. It does not include periods detained in the Military
Correctional Training Centre (MCTC) although these cases can be considered for deportation
under the Immigration Act 1971.
2.3 Foreign criminals who do not meet the criteria for automatic
deportation
If a foreign criminal does not meet the automatic deportation threshold, consideration must be
given to whether deportation should be pursued under the Immigration Act 1971 because it
would be conducive to the public good.
2.4 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.
2.4.2 Asylum and human rights
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.
2.4.2.2
Protection Claim
Protection (asylum, Article 2 and 3) claims must be considered by a case owner who has had
the appropriate training.
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Guidance for considering an asylum claim can be found through the
Asylum policy and
process index
.
2.4.2.3
Article 8
Article 8 claims from foreign criminals are considered under paragraphs 398 to 399A of the
Immigration Rules which are underpinned by sections 117A to 117D of the Nationality,
Immigration and Asylum Act 2002 (as amended by section 19 of the Immigration Act 2014).
For further information see
Criminality guidance for Article 8 ECHR cases
.
2.4.3 Age
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.
In most cases, Case Owners should be able to use the age accepted by the criminal court.
However, this is not a guarantee of age and case owners may need to consider other
evidence.
In age-disputed cases the strongest evidence that can be used to determine a foreign criminal
is over 18 is:
Original, credible documentary evidence from independent sources that they are 18 years
of age or over or
A Merton compliant age assessment by social services stating they are 18 years of age or
over
Assessments completed by social services emergency duty teams are not
acceptable evidence of age.
If you accept the foreign criminal meets the exception at section 33(3) because of their age,
this means that the Secretary of State does not have a statutory duty to deport him/her, but
consideration must still be given to whether deportation is conducive to the public good and
should be pursued pursuant to the Immigration Act 1971.
For more information, see
Managing foreign national offenders under 18 years old
.
2.4.4 European Economic Area (EEA) nationals
This exception applies to a foreign criminal who is an EEA national or who is a close relative or
a dependant of an EEA national. In order to meet this exception to automatic deportation the
foreign criminal must demonstrate that deportation would breach their rights under Community
treaties. EEA nationals are not covered by this guidance and if a foreign criminal provides
credible documentary evidence of his status as an EEA national or the family member of an
EEA national then you must consider the case under the deportation process set out in
European Economic Area (EEA) foreign national offender cases guidance
.
If the foreign criminal does not provide satisfactory evidence that they meet the exception at
section 33(4), then he/she remains liable to automatic deportation pursuant to section 32.
2.4.5 Extradition
If a foreign criminal is subject to current extradition proceedings they will be exempt from
automatic deportation.
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In an extradition case:
o
The judicial cooperation unit (JCU) or Metropolitan Police extradition unit will contact the
criminal casework case owner once an extradition request has been received.
o
Any request for extradition from outside the UK takes precedence. Deportation must be put
on hold while extradition is taken forward by the JCU.
If extradition fails:
o
JCU will tell the case owner, who will proceed with deportation action.
2.4.6 Mentally disordered offenders
Foreign criminals held under one of the specified provisions of the Mental Health Act 1983 or
associated legislation are not subject to automatic deportation.
The Offender Management and Public Protection Group (OMPPG) in NOMS advises the
mentally disordered offenders (MDO) team when a foreign criminal is subject to restriction
orders, restriction directions or hospital directions under the Mental Health Act 1983.
Mentally disordered offender cases are dealt with by a specialist team in Criminal Casework.
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2.4.7 Victims of human trafficking
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.
The UK would be in breach of its obligations under the trafficking convention if the Home
Office were to remove or deport a potential victim of trafficking during the 45 day reflection and
recovery period.
Once this period is over and a conclusive decision finding they have not been trafficked has
been served, the exception to automatic deportation no longer applies on human trafficking
grounds (although it is possible other exceptions may still apply, for example human rights).
The case owner must serve an individual with an automatic deportation decision in the normal
way if:
they have previously been considered as a potential victim of trafficking, and
they have been given a 45 day reflection and recovery period, but
it is ultimately considered not to be exempt from automatic deportation under any of the
exceptions listed under section 33.
For the definition of a victim of human trafficking, see related links:
Victims of human trafficking - guidance for frontline staff
, and
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Victims of trafficking
–
competent authority guidance
.
2.5 Additional exemptions
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.
2.6 Exceptions apply
Foreign criminals excluded from automatic deportation under the UK Borders Act 2007 under
section 33 must be 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.
2.7 Making a decision to deport under the UK Borders Act 2007
If it is decided that none of the exceptions applies 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 criminal’s
presence is not conducive to the public good. For further information see
section 4.1
Making A Decision To Deport
below.
2.7.2 If the foreign criminal has made a protection and/or human rights claim which falls for
refusal then consideration must be given to whether certification under section 94, section 94B
or section 96 is appropriate. See 5.2
Certification of asylum and/or human rights claim
below.
2.8 Detention
The notice of intention to deport provides the power to detain under immigration legislation.
Further information on considering whether detention is appropriate prior to this decision being
made for the purposes of section 36 of the UK Borders Act 2007 can be found
here
.
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Section 3
1971 Immigration Act
3.1 Introduction
Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals
where their presence in the UK is not conducive to the public good. This gives the Secretary
of State discretion to act in a way that reflects the public interest. Evidence of serious or
persistent criminality must be proved to the immigration (balance of probabilities) rather than
criminal (beyond reasonable doubt) standard.
3.1.2 The full facts for why an individual is considered to be non-conducive should be
weighed against the relevant factors for why deportation may be disproportionate (length of
residence, ties to the UK, the UK’s obligations under the human rights and refugee
conventions). Initially this will be done on the basis of the information held on the individual by
the department. Any subsequent grounds raised within the 20 day deadline must also be
considered. For human rights claims made outside that deadline, the presumption should be
that the claim will be certified, unless there are strong grounds for why the issues could not be
raised earlier. See
Certification of asylum and/or human rights claims
below.
3.2 How to consider if deportation is appropriate
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 (see
Section 2
above) 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. See:
Court recommended
below;
the non EEA foreign national has received a custodial sentence of any
length for a serious drug offence or gun crime. See:
Drug offences
(Bournemouth commitment) guidance;
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;
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3.2.2 Case owners should also take into account:
Cautions: Police cautions can also be taken into account when considering
whether deportation is conducive to the public good. See:
GGfR- Page 54 - Non-
custodial sentences: cautions, warnings and reprimands
and related links for an
explanation of cautions;
Previous Convictions: All previous convictions can be taken into consideration
when making a deportation decision on or after 13 December 2012. See:
Rehabilitation of Offenders Act guidance
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. A full
definition of serious harm can be found in
Criminality guidance for Article 8 ECHR
cases
.
3.2.3 This is not an exhaustive list and deportation may be pursued in any case where
the Secretary of State considers that the individual’s presence in the UK is not
conducive to the public good.
3.2.4 The Immigration Act 1971 contains exemption to deportation. For further guidance see
Exemption criteria - section 7 of the 1971 Immigration Act
.
3.3 Court recommendations
–
section 3(6)
Section 3(6) of the Immigration Act 1971 allows for the deportation of foreign nationals who are
aged 17 and over and have been convicted of criminal offences in the United Kingdom, where
the sentencing court recommends deportation. The basis for court recommended deportations
is that:
They have been convicted of a crime where a term of imprisonment can be imposed;
The relevant form (an IM3) has been served on the subject, by the police or prosecuting
authority, at least seven days before sentence, giving the person the opportunity to state
why they should be exempt from deportation.
3.3.2 The text of section 3(6) of the Immigration Act 1971 can be found
here
.
3.3.3 Note: This is a recommendation only. If the individual would not otherwise fall to be
considered for deportation, it would not generally be appropriate to pursue deportation.
3.4Section 3(5)(b)
–
Deporting family members of foreign nationals
Section 3(5)(b) of the Immigration Act 1971 provides for the deportation of family members -
”
if
another person to whose family he belongs is or has been ordered to be
deported”
.
3.4.2 The spouse, civil partner or children under the age of 18 of a person who has either
been deported or been ordered to be deported are themselves liable to deportation. However
a deportation order under the 1971 Act cannot be made against a family member if more than
eight weeks have elapsed since the foreign national was deported.
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3.4.3 We cannot use this power where a family member has leave to remain in the UK in their
own right.
3.4.4 A deportation order made against a person under section 3(5)(b) will cease to have
effect if he or she ceases to belong to the family of the foreign national served with a
deportation order or if the deportation order made against the foreign national ceases to have
effect. Where the spouse or civil partner is liable to deportation in his/her own right e.g. they
are also foreign criminals, action must be taken on that basis.
3.4.5 Where a child of a foreign national liable to deportation is aged 16 or over and liable to
deportation in his/her own right, action must be taken on that basis.
3.4.6 For further guidance see:
Children and family cases guidance
3.4.7 When considering whether section 3(5)(b) is appropriate, full account must be taken of
paragraphs 365 to 366 of the
Immigration Rules
. These considerations must be reflected in
the comments on the reasons for deportation letter.
3.4.8 Where it is decided that it would be appropriate to deport a member of a family under
section 3(5)(b), paragraph 368 of the
Immigration Rules
should be taken into account and it
should be explained when the decision to deport is served, that the family member can leave
the United Kingdom voluntarily without the need for a deportation order being signed.
3.5 Exemption from deportation under section 7 of the Immigration Act
1971
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. Sections 7(3) and (4) set out how
the period of five years should be counted and excludes any time spent serving custodial
sentences of six months or more. For the text of the sections of the Act referred to in this
section, see:
Immigration Act 1971
.
3.5.2 The provisions of section 7(1) do not apply to nationals of Cyprus, Ireland and Malta as
they are now EEA nationals and consideration is given to deportation on that basis. For further
information see:
European Economic Area (EEA) foreign national offender cases guidance
.
3.6 British citizens
British citizens are not subject to immigration control and therefore cannot be considered for
deportation.
3.6.2 Guidance on how you can identify a British citizen can be found in the link:
identifying
British citizens and others exempt from deportation guidance
. Where an individual’s
nationality is not clear, they should be asked to provide original documentary evidence of their
nationality. Where there is any doubt, it is for an individual to provide evidence that they
are a British citizen or is entitled to any exemption under the Immigration Act 1971
–
see
section 3(8) of the
Immigration Act 1971
.
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Section 4
–
Decision to make a deportation
order
4.1 Making a decision to make a deportation order
If it is decided that deportation is appropriate then a decision to make a deportation order must
be served setting out why the foreign national
’s presence is non
-conducive to the public good.
The notice 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 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 until after the foreign national has had the opportunity to
make further representations so that all matters can be considered together.
4.1.2 The decision 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.
4.1.3 This decision should 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
reasons why they should be permitted to remain in the UK including any time there is a change
of circumstances, as soon as they occur.
4.1.4 The decision must also 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 an out-of-
country right of appeal. See
Section 94B certification guidance for Non European Economic
Area deportation cases
for further guidance.
4.2 Outstanding applications for limited/indefinite leave to enter/remain
under the Immigration Rules
A foreign national may have an application outstanding under the
Immigration Rules
e.g. a
settlement application. If a decision is pending then the evidence produced must be
considered when taking the deportation decision.
4.2.2 If it is decided that deportation action is appropriate then the claim under the
Immigration Rules will fall to be refused and must be done as part of the deportation
consideration in the reasons for deportation letter that accompanies the DO. See paragraphs
322(1C)/322(5)/322(5A) in the
Immigration Rules
for how to refuse foreign nationals who have
applied for leave under the rules.
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4.3 Detention
Guidance about the detention of foreign nationals under the Immigration Act 1971 can be
found
here
. A foreign national becomes liable to be detained when the decision to make a
deportation order letter is served.
Section 5
Representations and obtaining the deportation
order
5.1 Consideration of representations and right of appeal
If no representations are made after the 20 working day deadline for representations has
passed, the case owner must make a decision on issuing a deportation order on the facts that
are before them. As a human rights claim will not have been made by the individual, the
deportation order will not be appealable and the individual can be removed.
5.1.2 If the foreign national takes the opportunity to raise issues which they consider means
that they should not be deported, these must be considered fully. The burden of proof is on
the individual to show why the impact of deportation would breach the Refugee Convention or
their human rights, and so will have to provide evidence as to the impact of deportation. Less
weight will be given to unsubstantiated claims.
5.1.3 The case owner must take a view on whether deportation remains appropriate in light of
the new information. This must be done to the relevant test in light of those representations. If
the claim is refused, there will only be a right of appeal if the decision is one of the three types
set out in section 82 of the 2002 Act (as amended by the Immigration Act 2014):
Refusal of a protection claim,
Refusal of a human rights claim,
Revocation of protection status.
5.1.4 For further guidance on appeal rights under section 82 see the
appeals guidance
Rights
of Appeal on Horizon.
5.2 Certification of protection and/or human rights claims
If the representations raise protection or human rights grounds and it is decided to refuse the
claim(s), the case owner must consider whether the claim(s) should be certified under existing
powers (section 96 and section 94 of the 2002 Act, in that order) or, in the case of non-
protection human rights 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 for deportation
in certain circumstances. Guidance on when to certify a claim can be found in the following
links:
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Further submissions
–
section 96
Certification of Protection and Human Rights claims under section 94 of the Nationality,
Immigration and Asylum Act 2002
–
section 94
Section 94B certification guidance for non-European Economic Area deportation cases
- section 94B.
5.2.2 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.
5.2.3 If the post-decision representations do not raise protection or human rights grounds
then there will be no right of appeal against the decision.
5.2.4 The case owner needs to draft the decision on the human rights claim setting out the
reasons for refusing the representations and explaining any appeal rights or decision to certify
the claim(s), and obtain a deportation order.
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5.3 Post-deportation order representations
Any representations received after the deportation order has been made must still be
considered. However, the delay in submitting the representations will weigh against the
foreign national unless they are able to provide a reasonable explanation. A reasonable
explanation might be a very recent change in country circumstances which has rendered the
foreign national a refugee sur place. It would not include a failure to organise themselves or
others to meet the deadline.
5.3.2 If it is decided to refuse the post-deportation order representations then the letter must
make clear any appeal right/certification that applies.
5.3.3 If it is decided on the basis of the post-deportation order representations that
deportation should not be pursued, the deportation order must be revoked.
5.3.4
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Section 6
Deportation is not possible
6.1 Revocation of ILR
If it is decided not to pursue deportation action against a foreign national for whatever reason
e.g. removal would breach human rights, consideration must be given to revoking any
indefinite leave. For further guidance see
Revocation of Indefinite Leave
.
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