In discussions surrounding UK immigration law, the terms 'deportation' and 'removal' are often used interchangeably, yet each holds a distinct legal definition. This article seeks to clarify the differences between deportation and removal within the context of UK immigration law.
1. Legal Basis for Deportation
The basic power to deport individuals is found in section 3(5) of the Immigration Act 1971 ('the 1971 Act'), which states that a person is liable to deportation if they are not a British citizen and either
- The Home Secretary has deemed their deportation to be conducive to the public good; or
- Another person to whose family they belong is or has been ordered to be deported.
Section 3(6) of the 1971 Act also provides that, in certain circumstances, a person may be liable to deportation if that is recommended by a judge following a criminal conviction. The Home Office's guidance on Conducive Deportation makes clear, however, that:
"This is a recommendation only. If the individual would not otherwise be considered for deportation, it would not generally be appropriate to pursue deportation on this basis."
Section 3(5) of the 1971 Act should be read with the UK Borders Act 2007, section 32 of which creates a regime of "automatic deportation" in respect of certain foreign nationals convicted of criminal conduct. The 2007 Act provides that deportation is conducive to the public good where specified criteria are met (s 32(5)) and that the Home Secretary must make a deportation order, unless one of the exceptions set out in the Act applies (s 32(6)). Please see our previous article Domestic Deportation Framework: Key Provisions & Considerations for details.
EEA nationals (and their non-EEA family members) with rights under the Withdrawal Agreement will not be assessed under the domestic law framework for deportation if their criminal conduct occurred before the end of the transition period for the UK's departure from the European Union on 31 December 2020. Decisions to effect a person's deportation from the UK in those circumstances may only be taken on grounds of public policy, public health, or public security; and the relevant framework in those cases is that contained in the EEA Regulations 2016, as saved.
2. Criteria for Liability to Removal
The power of removal (sometimes referred to as administrative removal) is found in section 10(1) of the Immigration and Asylum Act 1999. That provision (as amended, in particular through the Immigration Act 2014) states that:
A person is liable to removal from the United Kingdom if the person requires leave to enter or remain in the United Kingdom but does not have it.
This definition can be broken down into two components: a person is liable to removal if (1) they are a person requiring leave to enter or remain in the UK and (2) they do not have it.
This power applies to several broad categories of individuals.
'Illegal entrants' are liable to removal. In section 33(1) of the Immigration Act 1971, an illegal entrant is defined as a person
'(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
(b) entering or seeking to enter by means which include deception by another person,
and includes also a person who has entered as mentioned in paragraph (a) or (b) above'
A person can thus become an illegal entrant in a variety of circumstances, including where they enter in a clandestine way, or enter by means of deception. However, a person can also be an illegal entrant if they unwittingly enter in breach of immigration laws, for instance by unintentionally evading border control or because a Border Officer mistakenly admits them in the belief that they are not subject to immigration control (the relevant Home Office guidance document, 'Initial consideration and assessment of liability to administrative removal', states that the unwitting nature of such a person's entry 'may be a mitigating factor and each case must be considered on its merits.')
Overstayers are also liable to removal. An overstayer, as defined by the interpretation section of the Immigration Rules, is someone who has stayed in the UK beyond either the expiry date of their permission, or any period during which that permission was extended by the operation of section 3C of the Immigration Act 1971.
A person can also become liable to removal on the basis of breaching conditions of their permission (e.g. working in breach of conditions) or because they have employed deception (other than deception rendering someone an illegal entrant). However, before such persons become liable to removal under section 10, their permission must be cancelled in accordance with the Immigration Rules (paragraph 10B and the grounds for cancellation in part 9) or, in the case of indefinite leave to remain obtained by deception, revoked pursuant to section 76(2) of the 2002 Act.
Finally, certain family members of a person (P) liable to removal can also become liable to removal, if they meet the following conditions:
- The family member is P's partner, P's child or a child living with P and in P's care, P's parent (if P is a child) or an adult dependent relative of P; and
- The family member has leave to enter or remain in the UK granted on the basis of their family life with P or has no leave but would be granted leave on the basis of family life, but not in their own right.
Importantly, as the Home Office's guidance confirms,
'Consideration of whether it is right to continue with or initiate administrative removal action must be based on the individual circumstances of each case.'
Thus, before deciding whether to proceed with administrative removal, caseworkers should consider both compelling or compassionate circumstances in favour of not pursuing removal action, and considerations of 'public policy' or 'public harm' (i.e. any reasons why it would be in the public interest or conducive to the public good to pursue removal action, such as an adverse immigration history, or evidence of criminality.)
3. Limits on Return to the UK After Deportation
Another difference between deportation and removal concerns limits on a person's ability to return to the UK.
Deportation orders do not have an expiry date, they remain in force until they are revoked. A person entering the UK in breach of an extant deportation order is an illegal entrant (s 33(1) Immigration Act 1971).
The only circumstances in which a deportation order ceases to have effect without being revoked are where:
- the subject becomes a British citizen (and Home Office records have been updated to account for this);
- a time-limited deportation order made under the EEA Regulations 2016, as saved, expires;
- the deportation order was made against a child of a person subject to a deportation order, and that child is now an adult;
- the deportation order was made against the spouse or partner of a person subject to a deportation order and the marriage or civil partnership has ended;
- the deportation order was made against a family member of a person subject to a deportation order made on conducive grounds and the deportation order made against that person ceases to have effect; or
- the deportation order has been quashed by a court or tribunal.
Additionally, the existence of a deportation order is a mandatory ground for refusal of an immigration application, as specified in Part 9 of the Immigration Rules (although it is possible to combine an application for entry clearance with an application to the Secretary of State requesting revocation of a deportation order).
4. Re-entry Bans and Their Duration
Re-entry bans affect those who have previously breached UK immigration law, defined in paragraph 9.8.4 of Part 9 of the Immigration Rules as overstaying (subject to certain exceptions), breaching a condition attached to their permission, being an illegal entrant, and having used deception in relation to an application.
Depending on the circumstances of a person's departure from the UK, the re-entry ban can last between 12 months and 10 years. There is a table at paragraph 9.8.7. of Part 9 of the Immigration Rules setting out which period will apply. An application for entry clearance or permission to enter made within the relevant time period will always be refused (paragraph 9.8.1). As the Home Office guidance on re-entry bans explains, those deported from the UK are subject to 10-year entry bans but, as has been explained above (and is echoed in the guidance), this does not mean that a deportee can return after 10 years, given the effect of deportation orders.
Even once the applicable time period has elapsed, an application may still be refused if an applicant has 'previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach)' (paragraph 9.8.2.).
There are also provisions permitting the refusal of applications for permission to stay where there has been a previous breach of the conditions attached to a person's permission and permitting the refusal of applications where there has previously been deception (whether or not successful). Further information about previous breaches of immigration law as grounds for refusal under Part 9 can be found in the following articles from our Knowledge Centre Grounds for Refusal of a UK Immigration Application Explained and Previous Breaches of Immigration Law as a 'Suitability' Issue.
It should be noted that, where an application is made under Appendix FM or Appendix Adult Dependent Relative, the mandatory ground of refusal for previous breaches of immigration laws and the relevant time periods do not apply. As such, there is only a discretionary ground for refusal (of entry clearance applications) on this ground, provided the conditions of paragraph 9.8.2.(a) and (c) are met (i.e., there has been a previous breach of immigration laws, and the applicant has 'previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach)'. However, Appendix FM and Appendix Adult Dependent Relative also contain their own suitability criteria, which should be studied carefully.
5. Conclusion: Key Distinctions Between Deportation and Removal
As has been explained in this article, deportation and removal from the UK are legally distinct processes and terms. Deportation is the process by which the Home Secretary may remove a person where doing so is considered to be conducive to the public good. In most cases, deportation will be pursued after a person is convicted of an offence and given a sentence which triggers the automatic deportation framework of the UK Borders Act 2007. Removal, by contrast, is the process by which persons who are in the UK without permission are removed.
Whether you are facing deportation or removal, swiftly seeking professional legal advice as to your options is likely to be vital to ensuring the best possible outcome.