Receiving a deportation order to leave the UK can be a deeply traumatic experience, especially if it is unexpected or due to circumstances outside of your control. If you have recently received a deportation order for any reason, it is vital to engage strong legal expertise if you plan to appeal the decision to have you removed from the country.
Unfortunately, deportations are not uncommon in the UK. According to the Migration Observatory, in 2019 there were over 7,400 enforced returns; this was, however, the lowest annual number on record, and represented 22&#x f;ewer than in the previous year. It is believed that this reduction is, in part, a response to the Windrush scandal.
What is a Deportation Order?
According to part 13 of the immigration rules, an immigration order, “requires the subject to leave the United Kingdom and authorises his detention until he is removed. It also prohibits him from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom given him before the Order is made or while it is in force”.
A deportation order may be issued where:
- the Secretary of State deems the person’s deportation to be conducive to the public good, or;
- the person is the spouse or civil partner or child under 18 of a person ordered to be deported, or;
- a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
The Home Office will typically issue a deportation order automatically where a foreign national has committed a criminal offence with a custodial sentence of more than one year.
See also: ‘Revocation of a Deportation Order – When you should Apply’
Can I Appeal Against a Deportation Order?
In order to appeal against a deportation order, a robust appeal relying on Article 8 of the European Convention on Human Rights (ECHR) will need to be brought against the Home Office. Article 8 of the ECHR refers to the ‘right to respect for private and family life, home and correspondence’. Part 2 of article 8 states, “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
One of the main hurdles is overcoming the argument that deportation is in the public interest. Public interest in deportation must, therefore, be heavily outweighed by other factors for which there are compelling circumstances.
Appealing on the basis of your child in the UK
For foreign nationals who have received a deportation order as a result of a prison sentence of between one and four years, and have a child under 18 in the UK who is either British or has been in the country for seven or more years (immediately preceding the date of the immigration decision), it is then possible to appeal a deportation order if:
- the person has a genuine and subsisting parental relationship with the child, and;
- it would be unduly harsh for the child to live in the country to which the person is to be deported; and
- it would be unduly harsh for the child to remain in the UK without the person who is to be deported.
Appealing on the basis of your relationship in the UK
It may also be possible to appeal where it can be proven that the person who has received a deportation order is in a genuine and subsisting relationship with a British partner. The partner must be in the UK and be a British Citizen or a person settled in the UK. The rules state that in order to appeal under article 8, it must also be proven that:
- the partnership was formed when the person was in the UK lawfully and their immigration status was not ‘precarious’, and;
- it would be ‘unduly harsh’ for that partner to live in the country to which the person is to be deported, and;
- it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
Appealing on the basis of private life in the UK
The person being deported must also be able to appeal if they can prove they have been in the UK for most of their life, they are socially and culturally integrated in the UK, and there would be “very significant obstacles to his integration into the country to which it is proposed he is deported”.
If My Deportation Order Challenge is Successful, will I be able to Stay in the UK?
Unfortunately, having a deportation order revoked does not automatically mean that the person then has the right to remain, or that their previous leave will be reinstated. This decision will depend on the circumstances of the individual and their family. Limited leave to remain may be granted alongside specific restrictions imposed by the Secretary of State.
Being on the receiving end of a deportation order, whether as the immediate deportee or their partner or family member, can be a harrowing experience. It is essential to secure the services of experienced immigration Solicitors who can guide you and your family members through the process of bringing a challenge and appeal. The key is to build a robust case with full knowledge of UK and EU law, and recent immigration case rulings. By doing so, you will give yourself the best possible chance of a favourable outcome and allow you to remain in the UK.
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