Various news articles have been published today about the charter flight that flew to Jamaica at 6.30am this morning. It has recently been confirmed that 17 people were on the flight; 25 other people were expected to fly, but they were able to postpone their deportation following a late out of hours challenge before the High Court and then the Court of Appeal.
Today, I’ll look at important considerations involving deportation, an area of immigration law which is extremely complex and garners controversial public opinion.
What is deportation?
Deportation is often confused with removal; the two terms are very different. As an immigration lawyer, I often get frustrated when journalists use the word ‘deportation’ for a case which isn’t a deportation matter.
A non-British (and currently, non-EEA) citizen can be deported from the UK if they have been convicted of a criminal conviction, usually one which has resulted in a custodial sentence of 12 months or more.
On the other hand, a non-British national can be removed simply because they are unlawfully present in the UK.
The considerations that the Home Office will take into account for deportation and removal cases are very different. Deportation decisions are often extremely difficult to challenge, as you must demonstrate that allowing a foreign criminal to remain is in the public interest.
Members of the Cabinet have said that all of the deported Jamaican nationals had been convicted of criminal offences and had served prison sentences of 12 months or more, but this has been disputed by their legal representatives and supporters.
Is it easy to challenge deportation?
Absolutely not. Relevant considerations will depend on the length of the custodial sentence that the foreign criminal has served.
For non-EEA nationals who receive a custodial sentence of between 12 months and 4 years, in order to successfully challenge a deportation decision, the foreign criminal must prove, with evidence, the following:
• They have a genuine and subsisting relationship with a qualifying child; it would be unduly harsh for the child to live in the country to which the person is to be deported; and it would be unduly harsh for the child to remain in the UK without the person to be deported. Alternatively;
• They have a genuine and subsisting relationship with a qualifying partner; the relationship was formed when the deportee was lawfully present in the UK and their status not precarious; it would be unduly harsh for the partner to live in the country to which the person is to be deported; and it would be unduly harsh for the partner to remain in the UK without the person.
The above requirements can be extremely difficult to meet; the ‘unduly harsh’ test is a high hurdle to overcome.
For sentences of 4 years or more, there must be very compelling circumstances over and above the above considerations. Deportation is extremely likely, unless their case is exceptional.
At present, the above criteria don’t apply to EEA nationals in the UK. In order to challenge deportation, EEA criminals need to meet different, less stringent criteria; this most likely change when the Brexit transitional period comes to an end on 31 December 2020.
Can deportees return to the UK?
Legally, no. Once a deportation order is signed against a foreign national offender, it will remain in force indefinitely until it is revoked. Therefore, to apply to return to the UK, deportees will need to apply to revoke the deportation order and, if successful, will then need to apply for entry clearance to return to the UK.
It can be very difficult to revoke a deportation order if less than 10 years have passed since the order was signed. Even if 10 years have passed, revocation may be challenging unless the situation has materially altered or there is a change of circumstances.
Why a charter flight?
Foreign nationals may be deported (or removed) on chartered flights, or on standard scheduled flights. Charter flights are where the Home Office charter an entire aircraft for the purposes of returning a number of individuals to a specific country. Home Office guidance acknowledges that there are frequent charters to Afghanistan, Albania, Ghana, Nigeria and Pakistan. Interestingly, Jamaica is not currently a frequent charter destination.
Often, the submission of a Judicial Review, to challenge an unlawful decision issued by the Home Office, can defer the deportation of a foreign criminal. However, due to the particular nature of charter flights, a Judicial Review does not automatically defer it; the individual would need a specific court order, an injunction, in order to prevent their removal on the charter flight. If their legal challenge is subsequently unsuccessful, it is likely that the Home Office will seek to remove the individual again, either on a charter or standard scheduled flight.
All deportees will be given notice of their proposed deportation, although those being deported on a charter flight are given less notice than those being deported on standard scheduled flights. The Jamaican deportees should have been given at least 5 working days of their removal; the Home Office considers this to be sufficient notice to enable the individual to secure legal advice, but as a lawyer, I can confirm that 5 working days is a very tight schedule.
The deportees are likely to be held in detention centres located far from our office, meaning we can only secure instructions over the telephone; we may need information from other family members and experts located in the UK or throughout the world; and it is often very difficult to secure suitable evidence to support a challenge within such a short period of time. Experts may be instructed to prepare reports in deportation matters, and it can often take weeks for them to meet with clients and prepare a thorough report about their circumstances and the risks of their deportation to them and their family. Furthermore, preparing applications / Judicial Review claims is time consuming, so lawyers are often left with very little time to prepare a challenge which stands reasonable prospects of success.
The Court of Appeal upheld an injunction preventing 25 Jamaican nationals from being removed on the latest charter flight; the injunction was issued on the basis that the detainees could not secure legal advice. Their lawyers had argued that the individuals had suffered from mobile phone signal problems. The court ordered that the government must not deport anyone from Colnbrook or Harmondsworth removal centres unless they had access to a functioning non-O2 SIM before 3 February. It is likely that the Home Office will ensure that the 25 nationals now have access to a functioning phone and will subsequently re-serve their decision to deport the individuals from the UK either on a charter flight or on a standard scheduled flight.
Windrush
Chancellor Sajid Javid has confirmed that those deported from the UK are not members of the Windrush generation; I’d like to hope he’s right about this. Jamaican nationals are Commonwealth citizens, so they could be British citizens under the Windrush scheme if:
• They were settled in the UK before 1 January 1973 or have a right of abode, which means they are exempt from UK immigration control
• They are the child of a Commonwealth parent who was settled in the UK before 1 January 1973, if they were born in the UK or arrived in the UK before the age of 18
Latitude Law has successfully challenged deportation decisions issued by the Home Office and has also managed to revoke deportation orders that have been signed against non-EEA and EEA nationals. If you would like to discuss your deportation case, or any other immigration issues, contact our experts now on 0161 234 6800 (Manchester and London) or 0151 305 9600 (Liverpool).