Help - I Missed My Immigration Hearing and I Have A Deportation Order

Help - I Missed My Immigration Hearing and I Have A Deportation Order

Missing an immigration hearing can have serious consequences, including being deported from the country.  However, many migrants suffer mental health problems, leaving them vulnerable to being unable to attend their Case Management Review hearing or full Tribunal hearing on the scheduled date.  If this has happened to you, there are steps you can take to prevent being sent back to your home country.

If you have missed your immigration hearing, it is important to seek help from an experienced immigration lawyer who can provide you with the best legal advice. 

What is an immigration hearing?

An immigration hearing is held as a way of appealing an adverse immigration decision.  For example, your right to seek asylum may have been refused, or your application for Indefinite Leave to Remain has been rejected, and you have a right to appeal on human rights grounds.

There are two types of immigration hearing: A Case Management Review hearing and a Full Hearing.  If you do not attend your hearing, the judge can proceed without you.

Are migrants vulnerable to mental health issues?

Many migrants, especially asylum seekers, suffer from mental health issues.  These can include depression, anxiety, and post-traumatic stress disorder (PTSD).  Studies show that the country from which migrants come from originally does not determine their mental health, instead, it is hardship experienced before, during, and after resettlement  that can cause mental health problems.  Research also confirms that migrants who have precarious legal status (often the situation for those needing to attend an immigration hearing), are at even higher risk of stress-related mental health problems.  The pressure of trying to be understood in a foreign language, navigating an unfamiliar cultural and legal landscape, and being far away from friends and family can strain even the most resilient person.

Is it legal for the Home Office to detain people with mental health issues?

 The UK Border Agency's Enforcement Instructions and Guidance (the Policy) the key document dealing with immigration detention.  Chapter 55.10 of the Policy states that "those suffering from serious mental illness which cannot be satisfactorily managed within detention" should not be detained unless exceptional circumstances exist.  The Policy also obliges the Home Office to conduct monthly reviews of every detention where deportation is pending.

A 2018 government-commissioned report on the progress of implementing the recommendations of a previous report  (known as the Shaw Review) on the welfare of vulnerable persons in detention found that thousands of vulnerable people were being locked in "unacceptable conditions".  And worse still, those with mental health issues were being detained for "deeply troubling" lengths of time.  The report went on to warn detention itself could seriously damage the mental health of migrants.

In 2016, the Supreme Court considered the Shaw Report in the case of R (on the application of O) v Secretary of State for the Home Department.  The Appellant, O, was appealing the dismissal of her allegation that she had been unlawfully detained by the Secretary of State for the Home Department, R.

O, a Nigerian national, had entered the UK illegally in 2003.  She was sentenced to 12 months imprisonment in 2008 and recommended for deportation.  Following her release from prison, O was detained in immigration detention, but her deportation was delayed because of concerns regarding her mental health.  O had a history of self-harming and had been diagnosed with depression and emotionally unstable personality disorder.  She had also attempted suicide in the past.

O was released from detention in July 2011.  Five months earlier, a clinical psychologist stated that O could not access the mental health services she needed in detention and that to assist her mental wellbeing, she needed to be released.

The Supreme Court was required to consider R's policy relating to the detention of the mentally ill pending deportation.

In giving the judgment, Lord Wilson stated that the power to detain conferred by the Immigration Act 1971, Sch 3, para 2(1), and by the additional words contained in para 2(3) was subject to two conditions:

  1. there must be a prospect of deportation within a reasonable time; and
  2. the Secretary of State for the Home Department must consider in accordance with the Policy whether to exercise the power to detain.

If either condition is not satisfied, the mandate to detain ceases and detention becomes unlawful.

Although O's appeal was ultimately dismissed the Supreme Court concluded that in the six reviews of O' s detention written between 4 March 2011 and 4 July 2011, only the briefest reference was made to the psychologist's report.  By not considering the report properly, R had unlawfully failed to apply the policy set out in para. 55.10 when deciding to continue to detain O between March and July 2011.

If you are being held in detention and you are suffering mental health issues, it is imperative to get legal advice to ensure you are not being detained unlawfully.

What should I do if I missed my immigration hearing because of mental health issues?

If you missed your immigration hearing and an order to deport you has been made, it is crucial to seek legal advice immediately.  Your lawyer will file a motion with the Tribunal to reopen the hearing and request a stay of deportation.  If you have a good reason for missing your hearing, the judge will reopen your case. 

An experienced immigration lawyer will collate evidence such as GP/psychologist reports or hospital admission details which prove that your mental health issues let to you being unable to attend your scheduled hearing.

If you require an interpreter, your immigration lawyer will organise one for you.  This will ensure that you understand the legal advice you are being given and can be confident in making your decisions.  Most importantly, they can introduce you to organisations that specialise in helping people with mental health conditions.

In summary

Mental health issues affect people from all levels of society.  From asylum seekers to those on UK family visas, to Tier 1 Entrepreneur Visa and Tier 2 (General) Visa holders – no one is immune to the pressures moving to a foreign country brings.

If mental health problems result in you missing your immigration hearing, contact an immigration solicitor as soon as possible.  You are not alone and help and support are available.

To talk to someone at any time of the day or night, you can contact Samaritans on 116123 for free.

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