Deportation:
A deportation order requires a foreign national, usually with a criminal conviction, to leave the UK. The grounds of deportation can include, according to Part 13 of the Immigration Rules:
- Where the Secretary of State considers the individual’s deportation to be “conducive to the public good and in the public interest”
- Being the spouse, civil partner or child under 18 of a deportee
- Where a court recommends deportation in case of a person over the age of 17 that have been convicted of an offence punishable with imprisonment
Removal orders:
The categories of immigration breaches that may result in an administrative removal of a person include:
Those who are required to have leave to enter or remain in the UK but do not have it (such as overstayers, illegal entrants, and those who refused leave at a port of entry)
Those who are found to be breaching a restriction or condition of their visa to enter or remain in the UK
Those who seek or obtain leave by deception
Those who are family members of a person being removed
The Home Office must notify those liable for removal and cannot remove the individual during the noticed period
During the notice period, a challenge of the removal order may be carried out; however, after the notice period has expired, the Home Office has a 3-month removal window during which to remove an individual at any point without notice. The notice period for removal is 7 calendar days if the individual is not detained and 72 hours if the individual is detained.
Challenging Deportation and Removal Orders:
There is no automatic right of appeal to challenge a deportation order – however, under certain circumstances, a person may have the right to appeal to have the deportation order revoked such as under a human rights claim. A deportation order can be appealed by arguing a breach of the UK’s Human Rights Act 1998 obligations through Article 3 where there is a breach of the prohibition of torture or through Article 8 where your right to private and family life has been infringed, or both.
Any such appeal must be made within 28 days outlining the reasons why you should not be deported. However, if a person is in detention, they only have 5 days to appeal.
If the appeal is successful and the deportation order is lifted, non-EEA nationals and who require a visa to enter the UK can apply for entry clearance. EEA nationals and non-visa nationals can arrive at a port and seek ‘leave to enter’.
Removal orders should not be given if individuals have a pending application for leave to remain, if there is a pending asylum claim or if a fresh claim has been submitted and an individual is waiting to hear whether the fresh claim will be accepted.
If there is no right to appeal a decision or if there is no human rights-based claim to be made, a deportee can make a judicial review application which includes an injunction to stop the deportation order; this is an ideal option for those facing deportation very soon.
Can I re-enter the UK after being deported or removed?
Generally, it is very difficult to re-enter if a person has been deported or removed from the UK in less than 10 years ago, without the successful revocation of deportation or removal order.
However, if a child who was deported or removed as a family member has reached 18 years of age or if the marriage or civil partnership has come to an end of the spouse or civil partner who was deported or removed as a family member, then such persons can seek to return to the UK without applying for revocation of the deportation or removal order.
The question in respect to an application seeking interim relief (of which an injunction forms one such relief) is a complicated one.
The reason for this is because whether or not interim relief is required will depend on the circumstances the individual finds himself in. Traditionally, the necessity for interim relief is required in a narrow window and often an application, appeal or Judicial Review application will suffice to stop enforcement action from the Home Office. Enforcement can only take place if there are no ‘barriers to removal’ and applications, appeals and Judicial Review applications are such barriers to removal (other than in very case specific examples).
This article is addressing interim relief specifically.
In Immigration, the main need for interim relief is normally associated with removals/deportations that are ‘chartered’. This means that the Home Office have arranged a specific flight for individuals of the same nationality to return on one flight. This is oppose to normal commercial flights that some are returned on. You can identity a chartered flight because of the initials ‘PVT’ (or private) on the flight details.
Due to changes in immigration laws introduced in 2014, removals can sometimes be served upon an Applicant at short notice. It can follow the refusal of an application where there is only an out of country or when an individual has been detained and has no pending applications with the Home Office. Applications for interim relief can be made in one of two ways.
Firstly, if an individual can submit an application for Judicial Review by 4:30pm, the Upper Tribunal (or the High Court) can review applications for interim relief on the same day – this is known as in-hours.
However, this is not always possible given the abrupt nature of removals. Therefore, there may be occasions where an application can only be made out-of-hours. Simplistically put, an individual or their legal representatives will need to contact the Court Clerk for the Queens’ Bench Division to seek permission to file an application for interim relief. If permission is granted, an application form, grounds setting out the reasons why interim relief is required and supporting documents will need to be filed with the Court Clerk as soon as possible. Grounds can rely on a number of reasons such as human rights, international protection or European law.
Once the application is submitted, the legal representative or a barrister (if one can be found on short notice) will then give submissions on the telephone before the Duty Judge as to why interim relief should be ordered. Please note that the standard of proof or legal threshold to justify interim relief is of the balance of convenience.
The Duty Judge will then make a decision on whether interim relief is to be granted. If the decision is negative, then application before the Court of Appeal can be made but practically speaking there is often insufficient time to do so.
Where the interim relief application has been granted, the Court Clerk will email over to the legal representative and Home Office a copy of the Order to make sure removal has been deferred. However, your legal representative should also be seeking confirmation that the Home Office have received the Order and the terms will be adhered to. The Judge will then normally ask that the legal representative give an undertaking (a formal promise of which a breach has serious implications) as to when a Judicial Review application is to be submitted – some Judges are known to expect such an application to be filed the following working day.
In any event, you will need to go to the Royal Courts of Justice to pay for the out-of-hours application, to pay for the Order to be sealed (signed and stamped) by the Judge and then filed with the Upper Tribunal or High Court (depending on who has jurisdiction over the Judicial Review claim).
You will see that there are complicated, and time sensitive issues involved with seeking interim relief -particularly when done out-of-hours and you should seek legal representation immediately should you require assistance.
How We Can Help:
Our immigration solicitors are experts in dealing with emergency injunctions. We will help you to decide what your options are and once you understand your options, will offer you a tailor-made service for the process. Contact us on 02037324736 or e-mail.