HOLAB GUIDANCE NOTE: REMOVALS

(i) Overview

1. The removal process:

 The Secretary of State may, if he has a power to do so, decide to remove a non-
national.
 This is an immigration decision (within the meaning of s82 Nationality, Immigration
and Asylum Act 2002 (the 2002 Act)) and attracts a right of appeal.
 If the appeal is unsuccessful, the Secretary of State may serve removal directions
(RDs).
 The individual can challenge RDs by bringing a JR which will normally defer
removal (see para 22, ii.).
 The individual may also make further representations which the Secretary of State
must consider with a view to determining if they amount to a fresh claim before
removal can take place (see para 22, iii.).

2. Removal is distinct from deportation which is carried out for the public good.

(ii) The power to remove

3. The Secretary of State has the power to remove:

 those refused leave to enter and illegal entrants (‗port removals‘);
 those who are in the UK unlawfully (‗Admin removals‘);
 those whose statutorily extended leave has come to an end following an appeal.

Port removals:
4. A person can be removed if:

(i) they are refused leave to enter [paragraphs 8 and 10 of Schedule 2 to the
Immigration Act 1971 (‗the 1971 Act‘)];
(ii) they are an illegal entrant [paragraph 9 of Schedule 2 to the 1971 Act];
(iii) directions have been given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act
in respect of a member of their family [paragraph 10A of Schedule 2 to the 1971
Act]

For this purpose, an ―illegal entrant‖ is a person (a) unlawfully entering, seeking to enter,
or having entered in breach of a deportation order or the immigration laws or (b)
entering, seeking to enter, or having entered by means which include deception by
another person [section 33(1) of the 1971 Act].

5. There are also specific powers to remove seamen and aircrews in paragraphs 12 to 14 of
Schedule 2 to the 1971 Act.
 Admin removals

6. A person can also be removed if:

(iv) they have failed to abide by a condition of their leave or have overstayed their
leave [section 10(1)a) of the Immigration and Asylum Act 1999 (‗the 1999 Act‘)];

(v) they have used deception (successfully or not) in seeking leave to remain [section
10(1)b) of the 1999 Act];

(vi) their ILR is revoked under s 76(3) of the 2002 Act (person ceasing to be a refugee)
[section 10(1)ba) of the 1999 Act];

(vii) directions have been given under section 10 of the 1999 Act for the removal of a
member of their family (NB written notice of intention to remove must be given
before directions can be served [section 10(1)(c) and (3) 1999 Act].

NOTE: when a person is notified that a decision has been taken to remove him under s10
of the 1999 Act any leave previously given to him is invalidated – s10(8) 1999 Act.

Removal of those whose statutorily extended leave has come to an end

7. Finally:

(viii) a person can be removed if his leave, which was extended by section 3C(2)b) or
3D(2)a) of the 1971 Act, ends [section 47 of the Immigration, Asylum and
Nationality Act 2006 (the 2006 Act)]

(iii) Barriers to removal

8. The following are barriers to removal:

 A removal cannot take place if it would breach the individual‘s human rights.
Article 8 ECHR (family and private life) and Article 3 ECHR (ill-treatment) are the
most common barriers to removal. Article 6 (right to a fair trial) is often raised by
removees if they have outstanding judicial reviews or civil claims in the UK,
caseworkers should consider Chapter 21 of the EIG when considering claims
raising Article 6.
 A removal cannot take place if contrary to the Refugee Convention.
 All relevant factors known to the Secretary of State must be taken into account
before deciding to administratively remove an individual under s10 of the 1999 Act
(para 395C of the Immigration Rules, which lists a number of relevant factors that
should be taken into account).

9. Also note paragraph 20 below on deferring removal.

(iv) Removal directions

10. Removal directions (‗RDs‘) are set once the decision to remove has been taken. An appeal
against the decision to remove does not prevent RDs being given but a person cannot be
removed if their appeal right is in country by virtue of section 92 of the 2002 Act [Section
78 of the 2002 Act].

11. In port removals, RDs can be given to the owner or agents of a ship or aircraft that has
brought the individual to the UK as follows (paras 8 and 9 of Schedule 2 to the 1971 Act):

(a) to remove from the UK in any ship or aircraft they own;

(b) to remove to a country of which he is a national or citizen;
(c) to remove to a country or territory in which he has obtained a passport or other
identity document;
(d) to remove to a country or territory in which he embarked for the UK; or
(e) to remove to a country or territory to which there is reason to believe he would be
admitted;

And RDs can also be given to the captain of the ship or aircraft on which the individual
arrived to remove him in that ship or aircraft.

12. If RDs under para 8 or 9 are thought likely to be ineffective, impracticable or out of time
the Secretary of State can give any direction to the owner or agent of a ship or aircraft
that could be given under para 8(1)(c) Sched 2 1971 Act – see para 10 Sched 2 1971 Act.
RDs which require removal by another airline are not ineffective or impractical and the
booking and the cost of the ticket should not fall to the Secretary of State.

13. Points to note:

 Timing: RDs under para 8 Sched 2 1971 Act must be made within 2 months of any
decision to refuse LTE (ignoring the period during which any appeal is brought)
unless the owner or agent of the ship or aircraft has been notified in that period that
RDs will be served on him (para 8(2) Schedule 2 1971 Act).
 Costs: the owner of agent of the ship or aircraft covers the cost of removal under
paras 8 and 9 Sched 2 1971 Act. The Secretary of State covers the cost of removal
under para 10 Sched 2 1971 Act.

14. In admin removals, RDs are made under s10 of the 1999 Act. The Secretary of State
covers the cost of removal (see s10(9) 1999 Act). Directions may be given in accordance
with the Immigration (Removal Directions) Regulations 2000 (S.I. 2000/2243) to:
a) owners of ships;
b) owners of aircraft;
c) agents of ships;
d) agents of aircraft;
e) captains of ships about to leave the United Kingdom;
f) captains of aircraft about to leave the United Kingdom; and
g) persons operating an international service.
15. The direction may require that:
a) a captain of a ship or aircraft about to leave the United Kingdom remove the
relevant person in that ship or aircraft;
b) a person operating an international service make arrangements for the removal
of the relevant person through the tunnel system (only if the person has arrived
thorough the tunnel system);
c) any other person who falls within (a) to (d) of paragraph 14 make arrangements
for the removal of the relevant person in a ship or aircraft specified or indicated
in the directions;
d) any person listed in paragraph 14 remove the relevant person in accordance with
arrangements to be made by an immigration officer.

16. The directions must specify that the relevant person is to be removed to a country or
territory being—
(a) a country of which he is a national or citizen; or
(b) a country or territory to which there is reason to believe that he will be admitted.

Notice period
17. Under agreement with the courts the individual must be given 72 hours notice of
removal (which must include 2 working days). For assistance in calculating the latest
point at which RDs can be served see para 60.4 of Chapter 60 EIG.

18. There are certain exceptions to this rule:

 procedures differ for third country cases and charter flights- see Chapter 60 EIG;
 medically documented cases of risk of suicide or self harm – para 60.6 of Chapter 60
EIG;
 third county cases where UKBA are dealing with an unaccompanied minor in liaison
with Social Services – para 60.6 of Chapter 60 EIG.

19. Points to note:

 The exception regarding risk of suicide or self-harm is there to protect the interests of
the removee and should only be applied where there are genuine concerns about
their safety. The exception should be applied where the detainee (or a member of
his/her family who is also detained) is subject to an open Assessment, Care in
Detention and Teamwork (ACDT) procedure and is considered by healthcare to be at
risk of either potential suicide or other self-harm if given notice of removal. NOTE:
(a) the assessment must be by a healthcare professional (b) the risk must be associated
with the serving of RDs (c) it must not be possible to manage the risk effectively by
another means (d) UKBA should still give as much notice as possible whilst
safeguarding the risk to the individual.
 Legal risk can be minimised by ensuring that RDs are served during working hours
so the individual can access his legal team and the courts. If this is impossible
keeping an accurate record of what other options have been considered and why
these could not be achieved will assist if later challenged, for example if there is a
flight leaving on Sunday and one on Tuesday UKBA should consider using the
Tuesday flight if to do so would allow the removee access to his legal team.
 Failure to give appropriate notice will render the removal unlawful. Reliance on any
exception or practice concerning notice which does not appear in published guidance
will render the removal unlawful (N v SSHD [2009] EWHC 873 (Admin)).
(v) Right of appeal

20. The decision to remove an individual is an immigration decision and attracts a right of
appeal: see s82(1) and (2)(g) – (ia) of the 2002 Act. The right of appeal is not in country
unless:
i. the appellant has made an asylum or human rights claim; or
ii. is an EEA national and claims there is a breach of their rights of residence or entry
under the Community treaties; or
iii. the decision to remove was taken under section 47 of the Immigration and
Asylum Act 2006.
see s92 of the 2002 Act

21. RDs are not an immigration decision and there is no statutory right of appeal against
them. They can only be challenged by way or judicial review.

(vi) When must removal be deferred

22. Chapter 60 EIG should be consulted. Key points to note are:

i. Removal must always be deferred if a court injunction preventing removal is in place

– if the individual has signed a disclaimer agreeing to removal the court which issued
the injunction should be contacted to have it discharged before removing;
ii. If a JR against removal directions or the removal decision is brought this will
ordinarily lead to removal being suspended. However, if the individual became
appeal rights exhausted or lost a JR less than 3 months before the JR in question,
UKBA may decide not to suspend removal if the new claim raises:
a. the same or virtually identical grounds as material previously considered; or
b. material that could reasonably have been raised at the previous hearing.
iii. If further representations are made removal cannot take place until UKBA have
considered those representations and, if rejected, have considered whether these
amount to a fresh claim i.e. they are significantly different to the material previously
considered. They will only be significantly different if:
a. the content has not already been considered; and
b. taken together with previously considered material, there is a realistic
prospect of success (notwithstanding their rejection).
(see para 353 Immigration Rules (fresh claims))
iv. Other legal proceedings (whether against the Home Office, another or the removee)
may require removal to be deferred. Removal should be deferred if Article 6 – right to
a fair trial – would otherwise be breached (see paras 21.3 – 21.14 of Chapter 21 EIG):

HOLAB
September 2009