HOLAB Guidance Note: Automatic Deportations

Power and duty to deport

1. The Secretary of State has the power to deport a non-national if he considers their
deportation conducive to the public good (s3(5)(a) Immigration Act 1971). S32 UK
Borders Act 2007 provides that the deportation of certain persons is automatically
conducive to the public good and the Secretary of State must make a deportation order in
such cases unless certain exceptions apply.

Who is subject to automatic deportation?

2. Automatic deportation applies (s32 of the 2007 Act) to a person (“foreign criminal”):

 who is not a British citizen,

 who is convicted in the UK of an offence, and either
 who has been sentenced to a period of imprisonment of at least 12 months

NOTE: „foreign criminal‟ also includes a non-national convicted of, and imprisoned for,
an offence specified by order under s72(4)(a) of the Nationality, Immigration and Asylum
Act 2002 but this has not been commenced and there is no order under the 2002 Act.

3. For this purpose, a period of imprisonment includes:

 detention in an institution other than a prison, such as a hospital or an

institution for young offenders, and
 imprisonment or detention for an indeterminate period, provided that it may
last for 12 months.

But does not include:

 a suspended sentence, unless a court subsequently orders that the sentence, or

any part of it, is to take effect, nor
 where a person is sentenced to imprisonment for 12 months‟ or more only
because he is sentenced to consecutive sentences amounting in aggregate to
more than 12 months.

5. As well as applying to persons convicted after the commencement of s32 of the 2007 Act,
automatic deportation is also intended to apply to all persons:

 convicted before the passing of the 2007 Act (provided the person was in custody on
1st August 2008 or his sentence was suspended on that date);
 convicted after the passing of the Act but before commencement,

unless the person has already been served with notice of a decision to make a
deportation order under section 5(1) of the 1971 Act. (See article 3 S.I. 2008/1818.)

NOTE: the application of the provisions to those convicted after the passing of the Act
but before commencement is being challenged in the High Court (El-Sahli).

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Exceptions to the duty to make a deportation order

8. Section 33 of the 2007Act sets out 6 exceptions to the duty to make a deportation order:

 where removal would be contrary to the UK‟s international obligations under the
Refugee Convention or the ECHR (s33(2));
 where the Secretary of State thinks the foreign criminal was under the age of 18 on
the date of conviction (s33(3));
 where removal would breach the rights of the foreign criminal under the European
Community Treaties (s33(4));
 when, essentially, the person is subject to extradition proceedings (s33(5));
 when, essentially, the person is subject to any of the listed provisions relating to the
mentally ill (s33(6));
 where removal would contravene the UK‟s international obligations under the
Trafficking Convention.

In addition, those exempt from deportation under sections 7 and 8 of the 1971 Act
(Commonwealth and Irish citizens, crew, diplomats etc) are also exempt from automatic
deportation (s33(1)).

15. However, even where there is no duty to make a deportation order because an exception
applies, the Secretary of State retains the discretion to make a deportation order under
the 1971 Act (s33(7)). Indeed deportation is automatically conducive to the public good
even where the exceptions in s33(2) and (5) apply (s33(7)).

What are the appeal rights?

16. The decision of the Secretary of State that the automatic deportation provisions apply is
notified to the individual and a right of appeal attaches to that decision (s82(3A) NIA Act
2002). This appeal is out of country unless the foreign criminal (a) has made an asylum or
human rights claim while in the UK which has not been certified as clearly unfounded or
(b) is an EEA national or family member and claims that the decision breaches his rights
under the Community Treaties in respect of entry to or residence in the UK (ss 92(4) and
94 NIA Act 2002).

17. There is also an appeal right in respect of a refusal to revoke a deportation order (s82(k)
NIA Act 2002). (The deportation order is supposed to be made at the same time as the
decision that s32(5) of the 2007 Act applies and the policy intention appears to be that any
in country challenge or initial challenge on the basis of an exception should be dealt with
under s82(3A) and any application for “revocation” should be made out of country.)

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When can an automatic deportation order be made?

18. With one exception, the Secretary of State can make a deportation order under s32(5) of
the 2007 Act when he chooses. An automatic deportation order may not be made while a
criminal appeal against the conviction or sentence is pending, or could be brought within
time (s34(2) of the 2007 Act).

Points to note:
 An automatic deportation order can be made while an appeal before the AIT is
pending (s79(3) NIA Act 2002).
 An automatic deportation order does not invalidate any leave to enter or remain
which the foreign criminal has, for as long as the person may not be removed from
the UK while his appeal is pending (s79(4) NIA Act 2002).
 The policy intention is to assess a foreign criminal‟s eligibility to deportation 12-18
months before release inviting representations from the individual at that stage. The
deportation order and immigration decision can then be made simultaneously with
the ordinary grounds of appeal being out of country. (However, on occasion an
individual who has not been granted bail will be „time served‟ around the time of
sentencing.)

When can an automatic deportation order be revoked?

24. The Secretary of State can only revoke an automatic deportation order:

 in order to remake the automatic deportation order, having taken action

under the Immigration Acts or the Immigration Rules (s34(4));
 where he thinks one of the exceptions to automatic deportation applies;,
 where the application for revocation is made while the foreign criminal is
outside the UK.

Points to note:

 s34(4) is designed primarily to permit revocation for the purpose of certifying

instituted claims under s94 or 96 of the 2002 Act so that they may not be
continued with (since neither type of certification is deemed effective against
appeals which are already brought or instituted does not work if the claim is
already instituted). It is envisaged that s120 notices will be issued at the time
of inviting representations which might trigger the use of s96.
 An individual is free to apply for revocation in accordance with the
Immigration Rules (paragraphs 390 and 391) and the general grounds of
appeal (s84 NIA Act 2002) out of country.

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What powers does the Secretary of State have to detain?

28. There are essentially 3 powers:

 A person who has served a period of imprisonment may be detained while the
Secretary of State considers whether he has a duty to make an automatic deportation
order because s32(5) applies (s36(1)(a);

NOTE: This „thinking time‟ detention is being challenged under article 5(1)(f) ECHR
on the grounds that it might not count as taking action with a view to deportation.

 There is a power to detain where the Secretary of State thinks that s32(5) applies but
pending the making of the deportation order;

NOTE: This detention will be necessary for example where a person is „time served‟
around the time of sentencing but where a deportation order still cannot be made
because it remains open to the individual to appeal the underlying
conviction/sentence (see s34(2)).
 A person must be detained under para 2(3) Schedule 3 1971 Act when a deportation
order under s32(5) is in force against him, pending removal or departure from the
UK, unless the Secretary of State thinks it inappropriate to do so (s36(2));

Points to note:

 A court determining a criminal appeal against conviction or sentence may direct the
person be released from detention (s36(3));
 The provisions relating to bail and to release from detention on a restriction order
under Schedule 3 to the 1971 Act apply to a person liable to be detained under s36(1)
(s36(4) and (5)).
 Some courts are continuing to make deportation recommendations even when an
individual would fall within the automatic deportation provisions. A specific power
to detain individuals exists in respect of court recommendations pending the making
of deportation orders pursuant to such recommendations. However, this power
should not be relied on where it is clear that the individual is being considered under
the provisions of the 2007 Act (para 2(1) Schedule 3 1971 Act).

What provisions apply to family members of a foreign criminal?

31. Sections 3(5)(b) and 5(1) of the 1971 Act enable the Secretary of State to deport the family
of a foreign criminal subject to an automatic deportation order, with some modifications
as to timing (see s37). Section 37 provides that a deportation order may not be made
against a family member until 8 weeks has elapsed from when the foreign criminal
exhausted his appeal rights against the automatic deportation decision.

HOLAB
September 2009