The Home Office’s stated purpose is to seek to remove those who it regards as being unlawfully resident in the United Kingdom or who they deem their presence contrary to the public interest. Whilst for the non-lawyer these concepts may appear simple and straight forward in many cases they are not. It may not be possible for the Home Office to remove someone with an outstanding application or appeal (although this is dependent on a variety of factors).
In the case of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, the Supreme Court found that the Home Office’s policy of “deport first, appeal after” under section 94B of the Nationality, Immigration and Asylum Act 2002 (as modified by the Immigration Acts of 2014 and 2016) is unlawful, at least in its current form.
The effect of the “deport first, appeal after” policy was that some appellants were forced to leave the UK before their appeal took place. Most (if not all) of these out-of-country appeals where the Appellant was not present to give evidence were unsuccessful.
Removals under this policy have currently been put on hold following a series of cases currently going through the court system that aim to test the effectiveness of video-link evidence available abroad.
Presently, most removals that take place are administrative removals. The Secretary of State for the Home Department or an immigration officer has the authority to remove those who are in the United Kingdom without leave to remain (if leave is required). Family members such as partners or children who would not be granted leave to remain in their own right may also be removed. Administrative removal can also take place where the Home Office is of the view that someone has breached a condition of their visa or has obtained leave to remain by deception. Depending on the circumstances, many of these decisions may be challengeable with the support of an experienced immigration solicitor with a comprehensive knowledge of the legal rules relating to deportation and removal. This is particularly the case where evidence or material facts have been ignored or overlooked.
This term is widely misused and misunderstood particularly in the media. In the Immigration Law of United Kingdom it mainly relates to the process of the Home Office attempting to remove someone who’s continued presence they have deemed not to be conducive to the public good usually because they have committed a “serious crime” or are a “persistent offender”. It is not the same thing as administrative removal which is explained above. Usually the Home Office will notify the person of their intention to make a deportation order and there will be an opportunity to make representations. Except in a minority of cases a deportation order will usually follow. Applications can also be made to revoke an existing deportation order.
If you are in immigration detention then you have the right to apply for temporary release and if that request is refused or ignored, bail. Usually you will need to show that removal is not imminent, for example because removal directions have not been set or that there is some barrier in the way of removal such as an injunction or an application or appeal. In most cases it is also advisable to supply an address where you would live if release and have up to two sureties who would help you to comply with any conditions and can demonstrate that they possess funds that they would be willing to forfeit if you do not. Your bail hearing will take place at the First-tier Tribunal where you may either be transported or attend via video link.
According to a new procedure you might not be released if you are due to be removed in the 14 days after you are granted bail if the Home Office does not agree to it.
At Montecristo LLP, our experienced deportation solicitors have been successful in gaining many people their liberty, and in many cases we have gone on to secure their status in the United Kingdom.
In some cases it may be necessary to Judicially Review a Home Office decision or their failure to take an action. For example if the Home Office have wrongly withheld the right of appeal, have failed to consider evidence or recognise a fresh claim, taken too long to issue a decision, sought to remove without due process or not recognised a right to work then in appropriate cases that decision can be Judicially Reviewed. The traditional grounds of Judicial Review include illegality, irrationality (unreasonableness), procedural impropriety and legitimate expectation.
Since the end of 2013 most Judicial Review applications are made to the Upper Tribunal although some categories such as challenges to legislation, lawfulness of detention will usually still be lodged with the High Court. The deadline for applying for Judicial Review in the Upper Tribunal is as soon as possible and in any event within 3 months of the date of the decision.
Our deportation lawyers can assist with all stages of the process and fully prepare the application on behalf of the client. We will advise on the merits at the outset and make clear the legal and evidential requirements so that the application is set up on the best footing from the very start. We of course advise on all the supporting documents and evidence required and take the client through the immigration process from start to finish.
Our expert removal, deportation and bail solicitors can assist with templates for documents specified by the Rules and deal with third parties where necessary and we aim to make the whole process as smooth as possible. If there are any issues in your immigration matter you will know before applying and we can help best overcome them. In short, we prevent mistakes and ensure any application meets the requirements of the Immigration Rules. We are here to help you safely navigate your way through the UK immigration process.
