![[2024] UKUT 00066 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
Domestic law on deportation
Domestic law on deportation
Under section 5 of the 1971 Act, the SSHD may make a deportation order against a person whose deportation is deemed to be conducive to the public good, by operation of section 3(5)(a), or is a member of the family of such a person; or whose deportation has been recommended by a court (section 3(6)). We are concerned here only with the first category of persons.
Section 32 (4) of the 2007 Act deems the deportation of foreign criminals (as defined) to be conducive to the public good for the purposes of section 3 (5)(a) of the 1971 Act and requires the SSHD to deport such persons unless an exception set out in section 33 of the 2007 Act applies.
Prior to 31 December 2020, if the removal of the foreign criminal would breach his rights under the EU Treaties, an exception applied with the result that it was assumed neither that deportation was conducive to the public good, or that it was not conducive to the public good; the application of an exception did not however prevent the making of a deportation order.
The EUWA 2020 introduced s 3 (5A) of the 1971 Act which provides:
(5A) The Secretary of State may not deem a relevant person [our emphasis]'s deportation to be conducive to the public good under subsection (5) if the person's deportation—
would be in breach of the obligations of the United Kingdom under Article 20 of the EU withdrawal agreement, Article 19 of the EEA EFTA separation agreement or Article 17 or 20(3) of the Swiss citizens' rights agreement, or
would be in breach of those obligations if the provision in question mentioned in paragraph (a) applied in relation to the person.
A relevant person is defined in section 3 (10) of the 1971 Act which, so far as is relevant, provides:
For the purposes of this section, a person is a "relevant person"—
if the person is in the United Kingdom (whether or not they have entered within the meaning of section 11(1)) having arrived with entry clearance granted by virtue of relevant entry clearance immigration rules,
if the person has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules [i.e. under EUSS]
This definition must also, as the SSHD submits, be read subject to regs 3 (4) and 12 (1)(b) of the Grace Period Regulations which provide that “relevant person” within s 3(10) of the 1971 Act also includes a person who is a “relevant person” for the purposes of those Regulations. In effect, it expands s 3 (10) to include those who had resided here under the EEA Regulations prior to 31 December 2020 (a) until 30 June 2021, and (b) beyond that, if they had made an application under the EUSS before that date which is still pending or under appeal.
Automatic Deportation
As noted above at [34] the 2007 Act requires the SSHD to make a deportation order against a foreign criminal unless an exception applies. If no exception applies, then there is no need to assess whether deportation is conducive to the public good (Footnote: 2).
Section 33 of the 2007 Act provides:
Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
a person's Convention rights
(6B) Exception 7 is where—
the foreign criminal is a relevant person, and
the offence for which the foreign criminal was convicted as mentioned in section 32(1)
consisted of or included conduct that took place before IP completion day.
(6C) For the purposes of subsection (6B), a foreign criminal is a "relevant person"—
if the foreign criminal is in the United Kingdom (whether or not they have entered within
the meaning of section 11(1) of the Immigration Act 1971) having arrived with entry clearance granted by virtue of relevant entry clearance immigration rules
if the foreign criminal has leave to enter or remain in the United Kingdom granted by
virtue of residence scheme immigration rule [i.e. EUSS]
The application of an exception—
does not prevent the making of a deportation order;
results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.
- Heading
- Introduction
- Procedural history
- Broad outline of the issues
- The Law
- Background
- Domestic law on deportation
- The WA in detail
- Appendix EU of the Immigration Rules
- Discussion
- The Divisional Court set out the general principles on this issue at [80]
- ZA
- AS (Szuba)
- Rudas Rudokas (“RR”)
- The appeal will be listed to be remade in the Upper Tribunal on a date to be fixed
- The parties are therefore directed to prepare and serve 10 working days before the next hearing in electronic form
- The appeal will be listed to be remade in the Upper Tribunal on a date to be fixed
- RR The Secretary of State has stated in his email of 14 February 2024 that: “ Mr Rudokas’ human rights appeal can be dealt with by the FTT as a new matter in his existing appeal under the CRA Regulations
- CHRONOLOGY & LIST OF ISSUES
- 2008: A claims to have moved with his family move to the United Kingdom
- 22 Sept 2010: A convicted of failing to comply with CRO/CPO (unpaid work requirement imposed) [328]
- 25 Oct 2017: A convicted of battery [328]
- 30 July 2021: A convicted of offence (inflicting GBH without intent) in connection with the 28 Nov 2019 incident and is sentenced to 18 months imprisonment (reduced on appeal to 12 months) [343]
- 9 Sept 2021: A begins prison sentence 11 Oct 2021: SSHD notify A of intention to deport due to his conviction [348] [360]
- 15 Nov 2021: A’s solicitors submit representations resisting deportation [361]
- 3 May 2022: SSHD notifies A of decision to
- 9 May 2022: A served with deportation decision/order 9 May 2022: A files appeal on basis that the SSHD’s decision [15]
- 2 Nov 2022: Appeal heard by FTT (Judge Coutts) against both the human rights and EUSS decisions
- 20 Dec 2022: FTT decision handed down
- 4 May 2023: UT (Judge Kebede) grants SSHD’s appeal on basis that
- LIST OF ISSUES For the Home Office (pursuant to para. 27(a)(i) of the UT’s decision): the SSHD to provide “ confirmation of the relevant decision made in relation to the appellant’s deportation, given the apparent i
- In respect of A’s appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the Appeals Regs”)
- CHRONOLOGY & LIST OF ISSUES
- 9 Nov 2021: S’s sols provide submissions in response to deportation decision, including raising human rights claim [A/39]
- 23 May 2022: SSHD decision to
- 30 May 2022: S appealed against (i) human rights claim refusal and (ii) deportation order on the basis that [A/67]
- 30 June 2022: S applies under EUSS again allegedly on SSHD advice (previous application deleted) 21 Dec 2022: Appeal heard (Judge Dixon)
- 3 Feb 2023: SSHD appeals on basis that
- 24 Feb 2023: PTA granted on both grounds (Judge Curtis)
- 18 March 2023: S released from prison(?) [A/22] What is the source and scope of S’s right of appeal to the FTT?
- If so, is the error material such that the FTT decision is required to be set aside and re-made? Did the FTT materially err in deciding that S had made an application under the EUSS in February 2020?
- Without prejudice to the above, in deciding the appeal additional potential issues are
- CHRONOLOGY
- 13 July 2022: R convicted of money laundering/weapons possession offences (2-year prison sentence and POC (£384,120.19)) [8]
- 9 Aug 2022: SSHD gives notice of Stage 1 decision to deport under United Kingdom Borders Act 2007 / Immigration Act 1971 [11] 23 Aug 2022: R appeals 9 August 2022 Stage 1 decision to deport on (i) human rights grounds (Art. 8) and (ii) that his depor
- 13 Oct 2022: R placed in immigration detention [71]
- Feb 2023: SSHD applies for permission to appeal on two grounds
- LIST OF ISSUES – TO BE DETERMINED AT ERROR OF LAW HEARING UNLESS PARTIES AGREE THERE WAS AN ERROR OF LAW What was the scope of R’s right of appeal against the decision of 9 August 2022?
- Conclusions