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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
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Enforcement - overview
This topic looks at the two mechanisms by which the Secretary of State for the Home Department (SSHD), acting by the UK Border Agency (UKBA), can effect a person's removal from the UK.
Administrative removal
Administrative removal will (except in some limited historical circumstances) be relevant where deportation does not apply and:
a person's application for leave to remain has been refused and any appeal or possible appeal is no longer pending
they are in the UK illegally as an overstayer, illegal entrant or crew member remaining unlawfully
they have used deception in seeking leave to remain (whether such deception has been successful or not)
they have ceased to be a refugee and their indefinite leave to remain has been revoked
they have breached a condition of stay - the UKBA has the power to remove in the alternative to the power to curtail leave on this basis under the Immigration Rules, Part 9, para 322(3), or
they are the spouse, civil partner, or child under 18 of a person who is liable to administrative removal
Until February 2012 the UKBA would not normally make a removal decision at the same time that it refused an in-time application for leave to remain; it would expect the person to leave the UK voluntarily. It has indicated that from that date all such refusals will now be accompanied by a removal decision. This is to coincide with the removal on 13 February 2012 of the Immigration Rules, Part 13, para 395C, which provided a number of factors that the UKBA was bound to consider before it made a removal decision. This has been replaced with a new para 353, which gives factors the UKBA should consider if further submissions are made following the exhaustion of appeal rights. This puts the onus on the applicant to raise any such issues.
If a person is subject to administrative removal procedures they will face a mandatory re-entry ban of between 1 and 10 years, depending on the particular circumstances.
Practice note: Administrative removal looks at who is liable to removal, the relevant procedure, the position for EEA and Swiss nationals and their family members, and any available challenges.
Deportation
The SSHD has the power to make a deportation order against a person:
where their deportation is deemed to be conducive to the public good
where a court recommends their deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment
where the person is the spouse, civil partner or child under 18 of a person ordered to be deported, and
where the automatic deportation provisions of the UK Borders Act 2007 apply - in general terms this will be where a person has been convicted of a criminal offence and sentenced to a term of imprisonment of at least 12 months
The effects of deportation order are significant:
it requires the subject to leave the UK
it authorises their detention until removal
it automatically invalidates any leave to enter or remain, either given before the order is made or while it remains in force, and
it prohibits the subject from re-entering the UK unless and until it is revoked.
Practice note: Deportation looks at who is liable to deportation, the relevant procedure, the position for EEA and Swiss nationals and their family members, and any available challenges.
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