Automatic Deportation — s.32 UK Borders Act 2007
Under s.32 UK Borders Act 2007, a non-British national who is convicted of a criminal offence and sentenced to 12 months' imprisonment or more is subject to the automatic deportation regime. The Secretary of State must make a deportation order unless one of the exceptions in s.33 applies:
Article 8 ECHR — The Deportation Proportionality Test
For foreign national offenders facing deportation, Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014) sets out a statutory framework for the Article 8 proportionality assessment. Section 117C sets the public interest in deportation of FNOs:
- Where sentenced to fewer than 4 years — deportation is in the public interest unless: (a) the person has been lawfully resident for most of their life and is socially and culturally integrated, and there would be very significant obstacles to integration in the country of return; or (b) the person has a genuine and subsisting parental relationship with a qualifying child and it would be unduly harsh for the child to leave the UK or remain in the UK without the parent.
- Where sentenced to 4 years or more — deportation is in the public interest unless there are very compelling circumstances over and above the exceptions above. This is a very high threshold requiring exceptional factors.
A solicitor gathers evidence of the person's private and family life — children's school reports, medical evidence, partner's circumstances, length of residence — and instructs an expert to assess the impact of deportation on qualifying children.
Challenging Removal Directions
Where removal directions are set, a solicitor can act urgently to:
- File a judicial review claim in the Upper Tribunal and apply for an urgent stay of removal
- Make further submissions to the Home Office — a fresh claim under paragraph 353 of the Immigration Rules if there is new evidence not previously considered
- Apply for bail if the person is detained at an immigration removal centre
- Challenge the lawfulness of the detention itself — immigration detention must be reasonable and for the purpose of removal; indefinite detention is unlawful
Frequently Asked Questions
Can I be deported if I have lived in the UK for many years?
Long residence is a significant factor in the Article 8 proportionality assessment but does not automatically prevent deportation. Under the statutory framework in s.117C NIAA 2002, long residence (most of life in the UK) plus social and cultural integration plus very significant obstacles to integration in the country of return can satisfy the exception for sentences under 4 years. For sentences of 4 years or more, very compelling circumstances are required — the bar is significantly higher. A solicitor assesses your specific situation.
Can my British children prevent my deportation?
A genuine and subsisting parental relationship with a qualifying child (a British citizen or settled person under 18) is one of the statutory exceptions to deportation under s.117C. The test is whether it would be "unduly harsh" for the child to follow you to the country of return or to remain in the UK without you. This requires detailed evidence of the parental relationship and an assessment of the impact of separation. A solicitor instructs a social worker or child psychologist to prepare expert evidence of the impact on the child.
How long can the Home Office detain me while deportation is pending?
There is no statutory time limit on immigration detention in the UK, but detention must comply with the Hardial Singh principles — it must be for a lawful purpose, for a reasonable period, with a realistic prospect of removal within a reasonable time. A solicitor challenges unlawful detention by applying for bail to the First-tier Tribunal or by judicial review of the detention decision. Successful bail applications can result in release on conditions while the deportation is contested.
What is a "fresh claim"?
Where a person has been refused asylum or human rights protection and further submissions are made to the Home Office, those submissions constitute a "fresh claim" under paragraph 353 of the Immigration Rules if they are significantly different from the material already considered and have a realistic prospect of success before an immigration judge. A solicitor prepares fresh claim submissions with new evidence — country guidance changes, new personal circumstances, or new evidence not previously available — to restart the protection process.
Can I return to the UK after deportation?
A deportation order acts as an entry ban. The length of the ban depends on the grounds — automatic deportation orders typically carry a 10-year ban from re-entry. After the ban period, an application can be made to revoke the deportation order. Revocation is not automatic — the Home Office considers whether the reasons for deportation still apply. A solicitor prepares and submits the revocation application.