Legal Framework
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The most relevant piece of legislation in this context is the UK Borders Act 2007.
Under sections 32 and 33 of the UK Borders Act, people without British citizenship status who are sentenced to 12 months or more are subject to automatic deportation – regardless of how long they have lived in the UK - usually when their custodial sentences expire. During deportation proceedings and after the expiry of their custodial sentence, the person is excluded from Home Detention Curfew (HDF). They will be issued a ‘Detention Authority’ (IS91) and their detention in prison can continue under Immigration Act powers to detain.
There are many reasons individuals might not have secured British Citizenship status such as expensive visa application and legal fees. They may have British partners, children or even parents. They may be the only person in their family who didn’t “naturalise” in the UK, and thus be liable for deportation. However, without British citizenship (including where someone had Indefinite Leave to Remain or another form of regular status prior to their criminal conviction) they do not have the same rights as a British national. Automatic Deportation also impacts people who have been impacted by the introduction of the Nationality and Borders Act 2022 which increased the maximum penalty for “illegal arrival” to 4 years imprisonment and of “facilitating arrival” to life imprisonment. This makes it possible for people who have arrived via an irregular route to the UK to be charged with “illegal arrival” and then subject to deportation following a 12 month or more sentence.
There are some exceptions to automatic deportation which can be opposed on the following grounds:
Removal would breach the UK’s obligations under Human Rights Act of 1997[1], the Refugee Convention[2], or the Trafficking Convention[3]; or
The person detained was under the age of 18 at the time of conviction; or
is facing extradition; or
is e.g. subject to a hospital or guardianship order under mental health legislation (Mental Health Act 1983 in England and Wales); or
is an EEA national and the offence took place before 31.12.2020
The most commonly relied on exception is that deportation would be a breach of the right to family and private life under Article 8 European Convention on Human Rights (ECHR).
Other important legislation includes:
Immigration Act 1971
Makes it possible for the Secretary of State to make a deportation order for someone on grounds that their presence is not “conducive to the public good”. (This could apply to people who do not meet the automatic deportation threshold).
Nationality, Immigration & Asylum Act 2002
Sets out the power to revoke Indefinite Leave to Remain where a person is liable to deportation but cannot be deported for legal reasons. (Section 76).
Immigration Act 2014
Sets out the considerations for the deportation of “foreign criminals” in relation to breaches of a person’s rights under Article 8 of the ECHR (Section 117C).
Nationality and Borders Act 2022
Increases the penalty for people convicted of illegal entry or residence, if the offence took place on or after 28 June 2022, from a maximum of 6 months in prison to a maximum of 12 months or 4 years in prison (if the case goes to the Crown Court). Amendments made to the definition of “a particularly serious crime” which is now defined as one which attracts a sentence of at least 12 months.
