IMMIGRATION LAW



Immigration Law

Immigration Law

'Even where the appellant is unlikely to re-offend, the judicial authorities may be prepared to uphold a deportation on the basis that it may serve as an example and deter others.'

The UK Borders Act 2007 (“UKBA 2007”) entered into force on 1.8.2008 (UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 SI 2008/1818). The Government's intolerance toward “foreign criminals”; i.e non-British nationals who commit criminal offence is well known. Ss. 32-39 of the UKBA 2007 gives the SSHD, inter alia, even greater powers to deport foreign nationals convicted of criminal offences in the UK, by way of automatic deportation. 2. It is important to appreciate that these new provisions sit alongside the existing powers to deport (under s. 5(1) IA 1971) which are retained. The SSHD is given a choice as to whether to use his existing powers under s. 5(1) IA 1971 or to exercise these new powers under UKBA 2007. In general terms, these more onerous provisions are intended to make the deportation of foreign nationals even easier by (i) first by making a deportation (or a decision to revoke a deportation order) mandatory; i.e. the discretion to make a deportation under s. 5(1) 1971 no longer operates (ii) and second by restricting the right of appeal, in practice it is likely that this will happen through the certification by the SSHD that a human rights claim or CSR claim as manifestly ill-founded, thereby only giving rise to an out-of-country right of appeal, leaving only a challenge to a such a decision by way of judicial review. S. 34(4) allows the SSHD to make a s. 35(2) deportation order and then revoke it for the purpose of taking of action under the Immigration Acts or Immigration Rules and subsequently taking a new decision that section 32(5) applies and making an automatic deportation order. This would allow the SSHD the opportunity, for example, to revoke a deportation order and then certify a claim as clearly unfounded asylum and human rights claims under s. 94 of the Nationality, Immigration and Asylum Act 2002, where she had failed to apply her mind to the issue at first instance. At the outset, it is submitted that the provisions on automatic deportation, set out in ss. 33 - 39 UKBA 2007, are poorly drafted and extremely convoluted in form, making an already complex area of law extremely difficult to understand. Layton-Henry, Z. (1992) The Politics of Immigration (Oxford: Blackwell). PP. 123-125

Equally, it is as yet unclear how the SSHD intends in practice to make decisions under the Act. 4. It is hoped that these note will, in the absence of judicial guidance, highlight the main provisions of the UKBA 2007 on deportation, and comments on the difficulties practitioners are likely to face in representing clients. Automatic deportation 5. S. 32 UKBA 2007 makes it mandatory for the SSHD to make a deportation order against a non-British citizen (or a dual national1) who is convicted either (i) ...