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How soft is the law on deportation right now?

How soft is the law on deportation right now?

Theresa May
Theresa May by UK Home Office

Not very soft at all. Paragraph 364 of the Immigration Rules, which governs both the UK Border Agency and to a significant extent the immigration tribunal and courts, states that, subject to human rights law (an important proviso), there is a presumption in favour of deportation where the Home Office decides to try and deport someone, it will only be in exceptional cases that deportation is not the right course and, just to make things really clear for those not paying attention at the back, that deportation will normally follow where a person has broken the law:

364. Subject to paragraph 380 [which concerns human rights], while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.

To help speed things along, there is also a presumption in favour of deportation already written into primary legislation in the UK Borders Act 2007 at sections 32 and 33. This provides that any foreign criminal, defined as any foreign national sentenced to 12 months or more imprisonment, must be deported, subject to certain exceptions. One of those exceptions is a human rights exception. The law is already very strongly weighted in favour of deportation, then. How about the judges? It turns out they aren’t softies either. It is the immigration tribunal where most of the hard judicial graft is done on deportation cases. Only a handful of cases ever reach the higher courts. The leading tribunal case on this subject, by the President of the Immigration and Asylum Chamber, is that of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC). The perceptive reader will detect that this case sets out basic principles on deportation and the public interest. The first three of these basic principles suggest that cat lovers need not apply:

(a) In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place. (b) Deportation of foreign criminals expresses society’s condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them. (c) The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge.

It is true, though, that judges do not always find in favour of the Home Office in deportation cases. They do most of the time, though: only between 2 and 8% of deportation appeals are allowed, according to JCWI. The cases where a judge allows an appeal have to be very unusual on their facts and will typically involve EU law (as distinct from human right law) or the compelling best interests of a child or children. As already discussed in an earlier post on this blog, the only way Theresa May can stop some judges allowing some deportation cases is by modifying the Human Rights Act, withdrawing from the Council of Europe, removing access to the courts or legislating to tell judges always to dismiss cases. The current guidance to judges in both statute and in the Immigration Rules couldn’t really get any clearer. It certainly isn’t soft.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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