If you have received a Deportation Order from the Home Office it can be an extremely worrying time. A Deportation Order is served on a foreign national (ie not British) if they have committed a criminal offence and have been given a prison sentence of at least 12 months. Clearly, you would have done something wrong to have landed in prison but if you have been in the UK for a long time then it can be extremely troubling to know that when you are released you will be put on a plane to a country that you may longer have any connection with.
The rules around deportation are very strict and extremely difficult to get around. At some point during your prison sentence the Home Office will actively start to set the deportation in motion. It is considered to be very much in the public interest to remove foreign criminals from the UK. You can imagine that the public would consider that it is right to remove a foreign national who has committed one or more criminal offences in the UK as a way of fighting crime.
Along with a Deportation Order comes an opportunity to appeal to court. However, we see in most cases that there is little sympathy from the judges with a foreign national who comes before them having committed a criminal offence which is so serious that it has landed them in prison for over a year.
So what will happen going forward? The first thing to be aware of is that the Home Office will not necessarily wait until the end of your sentence to start deportation proceedings or to arrange for the actual flight to remove you from the UK. Therefore, if you are a foreign national and are given a prison sentence for longer than one year you should immediately seek legal advice on your options if you hope to stay in the UK.
So what are your options?
1. Firstly you will need to know how you will fund your case. With legal aid having been cut for more and more cases, you will need to check whether you are eligible to free legal representation as deportation proceedings can be extremely costly and there is no guarantee of success.
2. A much less attractive option is for you to throw in the towel and make arrangements to return to your country of origin or to another country that will accept you. For those who do agree to leave voluntarily but do not have the means, the Home Office can arrange financial support. This means, that if your country of origin is part of the scheme you will get financial and practical support to return home.
3. Alternatively, you can go through the appeals process either by representing yourself or instructing a specialist Immigration Solicitor. You will have to convince the court of the reasons that you should not be forced to leave the United Kingdom even though you have been to prison for over one year. This is a very time-sensitive period so if the court does decide against you there will be a very short period to put in a further appeal or review. Once you become what is referred to as “appeals rights exhausted” the Home Office will provide you with details of the flight and actively enforce your removal – so don’t lose your case just because you missed a deadline.
4. If you do receive confirmation that the flight has been booked then the only way to stop this will be to apply to the court on an emergency basis for an injunction. If an injunction is granted then you will have to act quickly and notify the Home Office, especially at the airport that you have an injunction against deportation. If an injunction is not granted then it is highly likely that the deportation will take place.
5. If the court does not grant an injunction you can make a last ditched attempt to ask the Home Office to cancel the Deportation Order – but to be honest , that’s not likely to happen. If you want to contest this further you may find that your only option is to do so after arrival at your country of origin.
Is there any hope?
Honestly? You need to think long and hard about whether to fight a Deportation Order. The legal costs can be prohibitive and if you go via the judicial review route you may be lumbered not only with your own legal costs but also that of the Home Office if your application is not successful.
An application to oppose a Deportation Order can succeed based on human rights grounds including the right to family life and the length of time you have lived in the UK. It is extremely difficult to prove – particularly if you have spent many years detained in prison. Years in prison do not count towards the years you have lived in the UK. Also, it is virtually impossible to have a family life with your children or your partner when you have spent the last few years in prison. So you can see that it would be very difficult to convince the Home Office and indeed the courts that you should be allowed to stay in the UK to continue your family life.
The Home Office will also consider any humanitarian or asylum claims that you put forward. But remember, here independent evidence really is key as the question will be asked as to why this was not raised earlier, if you only wait until the very end of the process to raise an asylum claim. The Home Office or the court will not believe something is so just because you say so. If you do consider that you have a real fear for your life or safety if you are returned to your country of origin then you should raise this at the earliest opportunity with convincing evidence.
Any case you put forward to prevent a deportation, must be extremely strong and utterly convincing if you are to have any chance of success.
Outside of all this a final option – non-legal as it is – could be to run an “airline campaign”. In this situation your supporters would highlight your case to the airline and ask the airline to refuse to carry you – thus making your physical removal an impossibility.
However, if it does get to the point that you are taken to the airport you are likely to be escorted by enforcement officers with instructions to ensure your physical removal from the UK.
If this happens, please put your personal safety first and do not physically fight againt your removal as this could result in serious injury to you. Although it will be extremely difficult an application for your return can be made from outside of the UK.
So there we have it. Remember, committing a criminal offence in a country where you are not a citizen can have damning consequences. Not just because of the impact on the victims or going to prison, but also because of the consequences of being removed from the UK – possibly indefinitely. If you are deported then a ban is applied against you returning to the UK, which is only overturned in exceptional circumstances.
If you are affected by anything in this article then you need to take immediate action – delay is the enemy of success.
Rachel Okello is a UK based solicitor and immigration consultant with Rogols Solicitors in Birmingham UK. www.rogols.co.uk/contact