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Immigration Law: Deportation, Removal and Human Rights - Coggle Diagram
Immigration Law: Deportation, Removal and Human Rights
The Secretary of State has traditionally determined that deportation is beneficial for the public good where a person has been convicted of either one serious crime or a series of lesser offences. The former category has been largely superseded by the fact that foreign nationals sentenced to a period of imprisonment of at least 12 months are invariably ‘automatically’ deported under section 32 of the UK Borders Act 2007. An offender who repeatedly commits minor offences or a person who commits a single offence involving, for example, the use of false identity documents for which they receive a custodial sentence of less than 12 months, may be deported at the Secretary of State’s discretion.
R v Kluxen [2010] EWCA Crim 1081 Court held: (a) In cases which the 2007 Act applies, it is no longer necessary or appropriate to recommend the deportation of the offender concerned AND (b) in cases which 2007 Act does not apply (e.g. foreign national does not receive custodial sentence 12 months or more or non custodial senctence, it will rarely be appropriate to recommend deportation of offender. Those cases remain discretion of Sec of State
The Government’s deportation policy has three stated aims. The first is specific to the foreign criminal. It is to address the risk of them re-offending and thereby the protection of the public. The greater the risk the more weight this factor is given. The risk is usually mentioned in the report prepared for sentencing and by the trial judge before imposing the sentence. The other two factors are more general. These are said to be the need to deter foreign nationals from committing serious crimes by ensuring that it is well known that one consequence is likely to be their deportation. Also, deportation is said to be an expression of society's revulsion at serious crimes and gives the public confidence in the way foreign citizens who commit serious crimes are dealt with.
- The client is not a British or Irish citizen
- The client was convicted in the UK of an offence
- The client was sentenced to a period of imprisonment of at least 12 months in a single sentence UNLESS ONE OF THE STATUTORY EXCEPTIONS APPLY
Exceptions - under 18 at time of conviction, clients removal would breach ECHR rights, breach UK obligations Refugee Convention
ECHR Article 8
In the case of a foreign criminal who has been sentenced to less than 4 years imprisonment deportation will not be appropriate where: -
- The client has a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child and the effect of deportation on partner or child would be unduly harsh; OR
- The client has been lawfully resident 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 their integration in the country of return
Person may appeal on the ground that removal would breach ECHR rights and/or UK obligations under Refugee Convention
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Administrative Removal
- Illegal entrant, overstayed or in breach of a conditions e.g. working if prohibited.
- Can be opposed using ECHR Article 8 as detailed in The Immigration Rules Appendix Private Life or Appendix FM family life as a parent or partner
Section 5 Immigration Act 1971 (IA 1971) the Secretary of State has discretionary power to make deportation order
Samaroo and Sezek v Secretary of State for the Home Department [2001]
The court held that the policy of deporting foreign nationals convicted of serious drug trafficking offences was a legitimate aim.
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S3(5)(b) and (6) IA 1971
- Deportation to be "conducive to the public good"
OH (Serbia) [2009] INLR 109 *court identified three important features for public interest in deportation:
- The risk of re-offending by the person
- The need to deter foreign nationals from committing serious crimes by showing they may be deported
- Expression of society's revulsion at serious crimes*
- A person is a member of the family of a deportee
- Court recommended deportation, in the case of a person 17 and over convicted of an offence punishable with imprisonment
R v Kluxen [2010] EWCA Crim 1081 (1) Where the UK Borders Act 2007 requires (subject to exceptions, including certain detained psychiatric patients) the Secretary of State to make a deportation order in respect of a foreign criminal who has received a custodial sentence in relation to a single offence of at least 12 months, it is not appropriate for the court to recommend deportation. (2) Where because of the sentence imposed the UK Borders Act 2007 does not apply, deportation orders are appropriate only in exceptional cases. (3) As the Act applied, the recommendations for deportation were quashed.
Section 38 IA requires sentencing to be a single sentence for a single offence (not aggregate or consecutive sentences)