Receiving a deportation order from the Home Office can be a deeply stressful and traumatic experience. This is especially so if the person being deported has a family in the UK. If you have received a deportation order, regardless of your circumstances, it is vital to secure the help of immigration Solicitors immediately. The risk of not doing so is that the order will be enforced and the individual and potentially their family will be forced to leave the UK. There are several grounds on which it is possible to challenge a deportation order, but it is important to know which route to choose given the limited amount of time that may be available until the order comes into force. There are also some exemptions which may be considered as a means of reversing the deportation order. It is commonly believed that anyone who has been in the UK for ten or more years will be exempted from deportation, but this only applies in some circumstances, not all. In this article, we will discuss the ten-year rule, in addition to other exemptions which may be used.
While the UK remains part of the European Union (EU) for the remainder of 2020, EU Directive 2004/38/EC, also referred to as the “Citizens Rights Directive”, continues to apply to EEA nationals.
Section 24 of this directive states “Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989”.
Section 28 elaborates more on ‘protection against expulsion’, and explains that EU countries who are considering the expulsion of an EEA citizen on the grounds of public policy or public security must firstly think about:
This confirms that under EU law, the UK is bound to take into consideration the personal circumstances of the person being considered for expulsion.
The EU directive also confirms that no EU member state can deport an EEA national, or a member of their family (regardless of their nationality) if they have resided in the host Member State for the previous ten years.
Hence, the answer to the original question raised in this blog is, yes, if you are an EEA citizen who has lived in the UK for the past ten years (or more), you may be protected from expulsion unless the Home Office can make the case that you are a threat to public policy and/or security.
Beyond the law protecting EEA nationals who have been in the UK for ten or more years from deportation, there are some other exceptions. For foreign nationals who have been convicted of a crime and sentenced to jail, the length of the sentence will determine which exceptions can be used.
Offenders given a sentence of less than one year are unlikely to be automatically deported. Offenders who have been sentenced to between 12 months and 48 months in prison will, however, very likely be automatically deported. At this level of offending, it may be possible to bring a case against the Home Office to have your deportation order cancelled on the basis of:
The private life exception can be used if:
While this does not mean you are exempt from deportation if you have been sentenced for less than four years, if you can show you have been here for more than half of your life, it may be possible to challenge a deportation order on this basis.
The right to a family life exception may be used if you are 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. It can also be used if you have 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.
In the case of the family life exception, it is the time that a child has spent in the UK which is significant (i.e. seven or more years), not the number of years that the primary person who is being deported has been here.
For the most serious offenders’ sentence for four or more years, a deportation order will only be revoked in the most compelling circumstances.
It cannot be stressed enough how important it is to seek the guidance of an immigration lawyer professional if you have received a deportation order. Sound knowledge of the various exceptions, recent case law, and UK and EU immigration law are needed to secure a positive outcome.
Returning to UK after deportation – All you should know
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