Imminent Deportation
This section looks at the system used to deport people, and the legal and campaigning options you have if deportation is imminent (going to happen soon, usually when removal directions or a deportation order have been issued).
Deportations are carried out either on a commercial airline (one person) or by private charter flight (lots of people, mass deportation) or, rarely, by boat (for example from UK to Ireland).
‘Removal’ or ‘Deportation’
The legal difference between an enforced ‘removal’ and ‘deportation’ is explained below, but in this Toolkit the term deportation is used to describe all enforced removals, unless specifically stated. In this section, as in the section on Rule 39, removal/deportation is sometimes used for clarity, as is the term ‘removal’ when referring to UKBA terminology (e.g. notice periods) or processes such as the issuing of removal directions.
People can be deported if they fall into one of these categories used by the state:
- Administrative removal. This is when you don’t have any leave to remain; if your application for leave to remain – including claiming asylum – has been refused; or you did have some form of leave to remain/visa but it has now expired
- Automatic deportation. This is used when you have been sentenced to a criminal sentence of over 12 months imprisonment. In automatic deportation cases, there is no need for a court to recommend deportation in order for it to take place. Deportation will be attempted after completion of the custodial sentence.
- Non-automatic deportation. This is usually when you have been sentenced to a criminal sentence of less than 12 months imprisonment, but it decided to be ‘conducive to public good’ to deport you. Deportation will be attempted after completion of the custodial sentence.
Although there is a legal difference between the terms ‘removal’ and ‘deportation’, the words are often used interchangeably. ‘Administrative removal’ is a term only understood within the legal system of the UK. Globally, and commonly in the UK outside the legal context, deportation is used to mean any forced removal.
If UKBA decide to remove someone, they issue removal directions. This document will have the date and time of the flight, and the flight number. If the decision is made to deport somebody, a ‘Decision to Deport’ notice will be issued, and then a deportation order.
If you are told you are liable to be deported (rather than removed), you have 28 days to submit any reasons why you should not be deported. You have five days (if you are in detention, which you almost always will be) to appeal a decision to deport. For more on the notice periods between issuing a deportation order and the flight, see below.
The procedure for challenging removals and deportations is generally the same. In practice, deportation orders are harder to challenge (unless there are asylum/protection arguments, in which case they are similar to removal directions) because you need very strong Article 8 grounds – see ‘Human Rights, Asylum and Status’.
If you are deported from the UK following a deportation order (not simply forcibly removed with removal directions), you cannot apply for leave to enter the UK again until your deportation order has been revoked (and there is a time period that must elapse, which depends on the criminal conviction you received). Ask your legal advisor for advice on this before you are deported.
When Should People Not Be Deported -
According to the UKBA’s Own Rules?
If you have protection needs, a human rights case, or EU treaty rights
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if your deportation or removal would breach the UK’s obligations under the European Convention on Human Rights (generally Article 3 or 8 – see
‘Human Rights, Asylum and Status’
- if your deportation or removal would be against the Refugee Convention. If your asylum claim has been fully refused, UKBA will say your deportation does not breach the Refugee Convention.
- if you have an asylum claim pending (unless it has been decided the UK is not responsible for your asylum claim under the Dublin Regulations – see the section on this).
- while an in-country appeal to the asylum and immigration tribunal is pending. If you did not appeal at the time your asylum claim or immigration application was refused and there was an appeal right, it could be appealed outside of the official time period if there are good reasons (that you can prove) for the delay. Remember that not all asylum claims can be appealed in the UK – if your asylum claim has been certified, it cannot be appealed in the UK. You would need to see if a judicial review of the certification is possible.
- if you have submitted further evidence to be considered as a fresh claim and a decision has not been made on this yet. UKBA would have to show they have considered these and rejected them before they can remove someone. You should keep your proof of submitting further evidence. It is common for the rejection of the further submissions as being a fresh claim to be issued at the same time that removal directions are given
Note: If you have already been issued with removal directions but want to submit further evidence, UKBA will maintain the removal directions and then consider the further evidence prior to deportation. This consideration (which is almost always followed by a refusal) can take them a few hours. UKBA typically write back to say: ‘Thank you for your further evidence but we are maintaining the Removal Directions’.
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if your EU treaty rights would be breached (EEA citizens have considerable freedom of movement within the EU). You do not have to be a EEA citizen yourself to enjoy EU treaty rights – there are cases when your partner’s, child’s or other family member’s rights might prevent your deportation. You should seek legal advice on this: European law can be complicated, and there are important cases that have won particular rights in this area.
- for very exceptional mental health grounds (this will generally be argued under human rights grounds).
Your Age
- if you are an unaccompanied asylum-seeking child, UKBA accept you are under 18, and there are not adequate reception arrangements in your country of origin (e.g. no social services)
Other legal proceedings
- If you are involved in certain other legal proceedings – for example, if you are bringing a civil case against the Secretary of State for compensation (e.g. for unlawful detention); you are a victim of another crime; certain family law proceedings. This may also apply if you have an ongoing legal challenge to an age dispute (when UKBA do not believe you are under 18 years old).
When the proper procedure hasn’t been followed
This is very important, as the deportation may be unlawful and therefore could be stopped – it’s important to know what the proper procedure is in order to do this.
- A notice of intention to remove must be served.
- UKBA should not issue a decision letter of refusal of asylum/human rights claim (ISI51B) and removal directions (ISI51D) at the same time. Note: this refers to a refusal letter after a substantive consideration of your case. This will either be your initial asylum/human rights claim, or if further submissions were accepted to meet the fresh claim test, and your case was re-opened for consideration.
- There should be 10 working days (5 working days if in detention) between issuing the refusal letter and issuing removal directions.
- There is no such time period needed between issuing the refusal letter saying your further evidence does not meet the fresh claims criteria and issuing removal directions.
- Removal directions should always be sent also to the solicitor that is notified as working on the case. If any of these policies are not followed, or the notice periods below are not respected, deportation could be challenged.
Notice periods
- General removal and deportation cases – at least 72 hours between notice of removal and removal itself. The 72 hours must include at least 2 working days
- Third-country cases or certified claims – minimum five working days
- Family return limited notice removals – between 72 hours and 21 days
- Charter flights – (because a judicial review is not enough to cancel removal directions) – minimum of five working days
- Exceptions: port cases where leave to enter is refused and removal/deportation will take place within 7 days (in non-asylum applications, where a visa may have been applied for but entry is refused); failed removal/deportation cases when removal directions are re-set within 10 days (for example, if someone is taken off a flight after resisting removal/deportation)
Note: The 2010 exceptions that were brought in after disturbances in a detention centre (the exception that 72 hours notice was not needed if the ‘safety of individuals’ etc. was at risk) were found to be unlawful. Read about Medical Justice’s victory in this case.
See also UKBA handbook on Judicial Review and Injunctions (EIG Chapter 60)
