The question of whether a foreign national will be deported from the UK if they are convicted of a crime depends on a range of factors. Only very recently, Home Secretary, Priti Patel formally announced that all foreign criminals who are sentenced to more than one year in prison will be deported and/or excluded from entry to the UK. But it is believed the Home Office will go further than this, and bar persistent offenders who have received a jail sentence of less than one year, including for crimes such as pickpocketing and burglary. The new policy will effectively apply the same laws on deportation and exclusion to EU nationals that currently only apply to non-EU nationals.

What is the Home Office’s Current Policy on the Deportation of Foreign Criminals?

For foreign nationals who are convicted of a criminal offence in the UK, only the most severe cases lead to deportation. The risk of deportation effectively works on a sliding scale, from the lowest level of offending to the most serious.

Low-level offenders who have not caused serious harm who are sentenced to imprisonment of less than one year, and where they are not considered to be persistent offenders, will not be automatically deported. They may, however, be deported if a successful case is made that deportation would be ‘conducive to the public good’.

Medium level persistent offenders sentenced to between one and four years in jail, and who have committed serious harm will typically be automatically deported from the UK unless a successful case is brought on the basis of:

  • The offenders right to a private life under article 8 of the European Convention on Human Rights (ECHR), or;
  • The offenders right to family life under article 8 of the ECHR, or;
  • Very compelling circumstances

In order to succeed under the private life exception, it must be proven that the individual has been lawfully resident in the UK for most of their life, that they are socially and culturally integrated in the UK, and there would be significant obstacles to being reintegrated in their home country. The family life exception will only be successful where the individual has a genuine and subsisting parental relationship with a child who is British or has lived in the UK for seven or more years, and it would be unduly harsh for the child to be forced to leave the UK. The family life exception may also succeed if the individual is in a genuine and subsisting relationship with a settled person in the UK (i.e. a British citizen, a person with ILR, or an EU citizen with settled status), and it would be unduly harsh for that person to leave the UK.

Serious offenders who are convicted and imprisoned for four or more years are deported automatically, and will only be allowed to remain in the most compelling circumstances. This is based on a range of factors including “the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK”, and “the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise.”

As such, if a non-EU national is convicted of a crime and sentenced to imprisonment in the UK, deportation can be avoided by bringing a successful case based on the ECHR. Avoiding deportation cannot be assumed, and a strong case must be brought in order to achieve a decision in favour of the individual.

What Do We Know of the Proposed Changes Announced by Priti Patel in Relation to Deporting and Excluding Foreign Criminals?

The newly proposed immigration law changes announced by Priti Patel in relation to the deportation and exclusion of foreign criminals is part of a wider set of policy changes that are being considered in readiness for Brexit at the end of 2020 when the current extension arrangement with the EU comes to an end. In particular, this will include a new ‘points-based system’ for all migrants to the UK.

The full details of the policy change are expected to be announced later in 2020, but it is likely that it will include EU and non-EU foreign criminals equally. One of the challenges that the government will need to contend with is a) ensuring that the new immigration system has a consistent approach to criminal background checks, and b) crimes which may apply in other countries which do not apply in the UK. Without doing so, there is a chance that individuals may be excluded or deported inconsistently, and potentially, unjustly.

It also appears that the Home Secretary wants to make it harder for foreign criminals to avoid deportation, but it should be remembered that Brexit will have no direct impact on our obligations under the ECHR. It remains to be seen to what extent she will be able to adopt a harder line on the deportation of foreign nationals who have been convicted of a crime in the UK.

According to the Telegraph, it also appears that the intention of the new legislation is to make it easier to deport those convicted of minor offences. Ms Patel has cited the example of the offence of assaulting a police officer which has a maximum jail term of one year, but would not trigger automatic deportation; “the public would probably think that if you assault a police officer, you should be deported”. The danger is that this rationale for deportation may then extend down to much lesser crimes.

Final Words

Much depends on the true intention of the Home Office. All potential deportations should still be handled on a case by case basis and any attempt to cast a broad net over those outside of the UK who have committed a crime will be a recipe for injustice and unfair treatment. We will await the final shape of the new immigration policy later in the year and will keep you updated when more information is released. For further enquiry, please contact our experienced immigration solicitors.