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Deportation Appeal

An appeal against a notice of intention to deport can occur by an individual if he or she has been served such a notice and this appeal must be done within 5 working days from the date of receiving the notice. The Immigration Judge is required to hear this appeal and he or she must decide if the deportation is in accordance with the law and the notice of appeal must be filed with the First Tier Tribunal.

Under the Refugee Convention or the Human Rights Convention, if an individual’s removal pursuance to the order is contrary to the obligations of the UK Economy, the deportation order will not be made and this according to the Immigration Rules. Although there are some exceptional cases where the public interest in deportation is outweighed and this occurs where deportation will not be contrary to these UK obligations.

In the process where the private and/or family life of a foreign criminal has outweighed the public interest, paragraphs 398 to 399A of the Immigration Rules sets out some certain exceptions. Therefore, the exceptions to deportation are regarded as follows:

  • In the situation where a sentence of imprisonment for a period of four years has not been enforced on a foreign criminal, where:
    • The individual has an existing and sincere relationship with a qualifying child or he or she has an existing and sincere relationship with a qualifying partner or spouse and it will be unjustifiably harsh to grant deportation especially with the a child or a partner involved;
    • The individual has been a lawful resident for most of his or her lives in the UK Economy, he or she is socially and culturally cohesive in the UK and there would be very substantial obstacles to his or her integration in the country of return;
  • Under the circumstance where a foreign criminal has a prison sentence of at least 4 years, where there are captivating circumstances over and above the circumstances described in the abovementioned exceptions.

The provisions of the Immigration Act 2014, that is, the new out of country deportation appeal was enforced on 28 July 2014. The Secretary of State which is enabled by the new regime, can require any appeal against deportation to be brought from only abroad and this in both the EU law and UK law cases.

Certification of human rights claims made by persons liable to deportation

A new section 94B of the Nationality, Asylum and Immigration Act 2002 was created for the certification of human rights claim made by persons liable to deportation. The Act provides the following:

The 94B Appeal from within the UK that was made as a result of the certification of human rights claims made by persons liable for deportation.

  • The following sections; Section 3 (5) (a) of the Immigration Act 1971, that is where the Secretary of States considers deportation conducive to the good of the general public or Section 3 (6) of the same Act that is where deportation is recommended by the court following conviction applies when a person (“P”) who is liable for deportation has made a human rights claim.
  • The Secretary of State can consider (irrespective of the beginning or conclusion of the appeal process) the removal of P from the country or territory from which P is recommended to be removed, awaiting the result of an appeal in relation to P’s claim if the claim has been certified by the Secretary of State. Under section 6 of the Human Rights Act 1998, that is public authority not to act contrary to the Convention of Human Rights, the above statement is not considered unlawful.
  • The bases upon which the Secretary of State may certify a claim under subsection (2) includes that if P is removed to the country/territory to which he or she is proposed to be removed, P would not face any real risk of serious irreversible harm and this is before the appeal process has been concluded.

Ordinary non EEA deportation cases

Case workers are required to seek and certify a case using the section 94B power in all cases and where meeting certain criteria would not result in a serious irreversible harm and this is done if the policy of the Home Office is that the process of deportation should be effective and efficient. A limited group of cases will be tested on by the new power under Section 94B which are:

  • If at the time of the deportation decision, the individual is aged 18 years and over;
  • If the dependent child/children does not receive any parental relationship from the individual, this is shown in paragraph 6 of the Immigration Rules. In the case where there is no evidence that any parental relationship exists between the FNO (Foreign National Offender) and the dependent child/children, therefore, it would be possible to certify this cases because of the involvement of children.

Under this new power it is accepted by the Home Office that Article 3 and refugee cases should not be certified. A real risk of serious irreversible harm may arguably occur because it is not appropriate to certify protection claims which are made on the basis of the Refugee Convention and/or ECHR Article 2&3.

EEA Deportation Cases

On 28 July 2014, the Immigration that is European Economic Area (Amendment No. 2) Regulations 2014 (SI 2014/1976) came into force. An appeal against a deportation decision under Regulation 19 (13) (b) that can still be lodged in the UK but it no longer suspends removal proceedings can occur due to the Immigration (EEA) Regulations 2006 which is amended by these new Regulations except where:

  • Before the appeal is finally determined, it has not been certified by the Secretary of State that if the person has been removed to the country of return but he or she will not face a real risk of serious irreversible harm.
  • A court has made an interim order to suspend removal or the individual has made an application for an interim order to the courts to suspend removal proceedings such as judicial review has not yet been determined.

In the situation where the initiation of an interim order to suspend removal proceedings occurs, the guidance of the Home Office declares that removal will not be suspended except the order is made where:

  • A previous judicial decision is the bases of the notice of decisions made on a deportation order;
  • Judicial review has been previously accessed by the individual;
  • The imperative grounds of public security is the bases for the removal decision.

Under this new regime, a person who has been removed from the UK can apply to re-enter the UK so as to make submissions at the appeal hearing in persons. This is as a result of what Article 31(4) of Directive 2004/38/EC states.

The guidance reasons to limit this provision to cases where the appeal was lodged in time, a date of the appeal hearing has been set and submissions must be made by the individual in person. Under this approach, it has not been clarified if an individual with a legal representative would necessarily qualify for entry. It is also clearly stated by the guidance that permission for entry into the country must be sought after in advance, that is, an individual cannot just turn up at the border, and it would lead to refusal of admission. EEA cases and non EEA cases are given the same test phase and the same criteria also applies to both cases as stated by the guidance.

Serious and Irreversible Harm

It is acknowledged by the guidance that the test derived from the test for Rule 39 indications from the European Courts of Human Rights. It is required that the test will relate to the period between conclusion of any appeal and the deportation and after this process if successful the individual will return to the UK and it is also required by the test that the harm should be serious and irreversible. As stated below by the guidance are certain situations that in the opinion of the Home Office might not meet the test:

  • As an individual appeals against the decision of the human rights, he or sh will be separated from their child or partner for several months;
  • If a family court case is in progress;
  • A child or partner is getting treatment for a chronic or short-term medical condition that is under control and can be reasonably managed through medication or other forms of treatment and it does not require the responsibility of a full time carer to be done by the individual who is liable for deportation;
  • A breach to Article 3 has not occurred due to the medical condition of an FNO;
  • Deportation has caused the disruption of the strong private life ties that an individual has created in a community such as their jobs, mortgage or a prominent roles in an organization of the community.

A family court case is suggested to be clearly wrong. It is necessary for an individual to be physical present during the contested family court proceedings because if he or she is not present in the UK it would be impossible to assess certain needed information.

These examples stated below are given by the guidance and they are of situations that in the opinion of the Home Office would not meet the test:

  • The individual has an honest and existing parental relationship with a child who has a serious illness, who needs full-time care and there is no individual available who can provide that care or;
  • The individual has an honest and existing long-term relationship with a partner who has a serious illness, who are unable to take care of themselves and needs full-time care and there is no individual available who can provide that care.

As stated by the guidance of the Home Office, the demonstration that there is no real risk of serious irreversible harm must be decided by the Secretary of State. It is the responsibility of the individual to provide documentary evidence, preferably from official sources if he or she claims that serious irreversible harm could occur due to a non-suspensive appeal, examples of the documentary evidence should include a family court order, a marriage or civil partnership certificate, a signed letter-headed paper from the GP responsible for treatment, documentary evidence demonstrating long-term co-habitation from the official sources etc.

Judicial Review of section 94B Certificates

The decision to impose a certificate is possible by the judicial review when referring to certificates such as “manifestly unfounded”, “clearly unfounded” several “safe third country” and other appeal-limiting certificates and this usually leads to the effects of suspending removal. The substance of such a judicial review decides if;

  • The statutory test in section 94B is met or
  • If the application of the Home Office policy has occurred. Although the ultimate challenge will be based on if the cause for serious irreversible harm will occur due to the removal of the claimant during the currency of his or her appeal.

The above statement may only be restricted to a situation where it is being determined if an individual’s private and family life is caused by serious irreversible harm as stated in Article 8. It has been accepted by the Home Office that Article 3 cases will involve that same level of harm. It is also important to note if Article 6, that is a right to fair trial of the issue or an individual’s common law can cause serious irreversible harm.

Sometimes it is also feasible for some cases to be brought from abroad by an individual and while in other cases it may not be feasible. Depending on certain facts an individual’s involvement in family law proceedings might be considered an excellent example by the Home Office guidance where serious irreversible harm could be caused. It is also an example of a situation where it has been held by the European Court of Human Rights that an individual has the right to remain in the country in question in order to pursue their case: Ciliz v Netherlands (App no. 29192/95) followed and applied in UK domestic cases including MS (Ivory Coast) v SSHD (2007) EWCA Civ 133.

Deportation Appeal Lawyers

Application for the revocation of deportation order can be applied for by an individual against whom a deportation order has been issued and this must be done before or after his or her deportation from the UK. If the deportation order has been revoked by the Home Office, an individual can appeal against the Home Office concerning the refusal for the revocation of deportation order. The First Tier Tribunal will receive a filing of the appeal within 10 working days or 5 working days if the person is in detention and if the appellant is inside the UK. Although it would take within 28 working days to file the appeal if the appellant is outside the UK as a result of deportation.

Deportation Immigration Lawyers London

Reiss Edwards are professional immigration lawyers who deal with deportation appeals. Our service quality is self-evident based on the reviews from our clients about the services we have provided. Our immigration lawyers provide a fast, friendly, reliable and professional service and we can be contacted in our London office in relation to an individual’s deportation appeal.
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