The Issues of Deportation in the UK - Research Paper Example

The Issues of Deportation in the UK Critical assessment of the accuracy of the statement following: ‘Even where the appellant is unlikely to re-offend, the judicial authorities may be prepared to uphold a deportation on the basis that it may serve as an example and deter others.’ Deportation can be defined as the forcible removal of the deported person from the UK on the orders of Secretary of State. Deportation is ordinarily used for dealing with persons convicted of offences. It is usually the ultimate punishment that an immigrant can have imposed. The process of deportation is essentially an administrative order, subject to judicial review. English law provides tribunals to adjudicate the propriety of deportation orders. Deportation is always done where there is a criminal offence with which a person is charged, and looking to the seriousness of the crime, the court recommends deportation. There are three grounds for deportation. (1) Where it is deemed necessary by the Secretary of State that deportation is necessary for the public good. (2) Where the individual is a family member of the deportee. (3) Where there is a recommendation of a criminal court which has convicted a person over the age of 17years. Apart from these 3 grounds immigration officers have powers to remove people who have been refused leave to enter UK. They can also remove illegal entrants i.e. people who have entered without express permission. Further the Immigration Act 1999 provides the immigration officers powers to remove people who have exceeded the period for which they were allowed to live in the UK.1 This power is also given in cases where the people concerned have obtained leave to reside by deception. The same section also gives power to the immigration officers to remove members of the families of such people. Where any person is liable for deportation under the relevant provision of Immigration Act, 1971, the Secretary of the State may make an order of deportation against him. This means that the person will be ordered to leave the United Kingdom. Any leave granted to him to reside in the United Kingdom shall stand revoked after the order of deportation is passed. The order also means that the person will not be allowed to enter the United Kingdom again.2 The deportation order is supposed to be signed by the Secretary of State. However, it has been held in Carltona3 that a person properly authorized may carry out the function of Secretary of State. Deportation has now been made mandatory by virtue of UK Borders Act, 2007. This makes it compulsory that foreign nationals falling in the following two categories are subject to automatic deportation. (1) Where the foreign criminal is sentenced with an imprisonment of more than 12 months. (2) Where the foreign criminal is convicted of an offence is specified by order of the Secretary of State under relevant provision of law to be a serious offence.4 In the light of the powers given to administrative authorities to enforce deportation or otherwise to cause removal of persons whose removal would be conducive to public good, there are bound to be challenges to orders of deportation. Many appeals against deportation orders are filed before immigration appellate tribunals. There are certain circumstances where the persons ordered to be deported challenge the deportation on the ground that they are not likely to commit the offence again. Gina Clayton, in her Textbook on Immigration Law asserts that despite of this, the judicial authorities may be prepared to uphold a deportation on the basis that it may serve as an example and deter others. It is firstly to be said that the work of the author from which statement is taken is a textbook on immigration law. However the statement has to be looked at from the perspectives both of criminology and immigration law. There are various types of offences. An offence which may be common place in some other country may be ethically or morally be repugnant to the citizens in UK. In such cases where the severity of the offence is subjective to perceptions in the UK, it is left to the discretion of courts whether the deportation should be upheld or not. Gina Clayton argues that the judicial authorities uphold deportation more often than not as an exemplary punishment. It is her belief that the rejection of appeals against deportation will add as deterrent to other likely offenders. In R v Abdi5 the question was whether the recommendation for deportation made by the Court recorder was proper or not. The facts of the case in short are as under: The appellant Abdi was a visitor to a neighbouring home. On a particular day, he went to that home. A boy, 8 years of age from that home was watching TV. Abdi, the convict committed sexual offence, and was sentenced to 5 years of imprisonment. The court also recommended his deportation. The order passed by the court was challenged before the Court of Appeal. It was considered whether the convict was likely to commit the offence again. But the Court of Appeal found that the deportation recommendation would have to be based on whether the convict was likely to re-offend and the harm likely if he did re-offend. In that case, the recommendation for deportation was upheld. However, it must be mentioned that the recommendation for deportation. Even if recommendation is overruled in appeal, the Secretary of State still has discretion to order deportation if the deportation would be conducive to the public good. Where an order for deportation under relevant provisions of law is made by the Secretary of State, the person affected has a right of appeal.6 The adjudicator hearing the appeal can to allow the appeal if in his or her judgment he or she considers that the Secretary of State's discretion was not exercised properly7. In GO (Nigeria)8,the Court of Appeal considered whether the deportation order was violative of the fundamental right provided by European Convention on Human Rights.9 The said fundamental rights include right to private and family life, home and correspondence. The same article also provides that the enjoyment of this right should not be interfered with by the public authority unless in exceptional circumstances as mentioned in clause 2 of that article. The Court of appeal found in that case that relevant provision of law in the UK, as mentioned in Paragraph 364 of the Immigration Rules HC395 is similar to article 8. The deportation order was upheld. There are many instances where the overturning of deportation orders have led to tragic results. Hence the courts have exercised their discretion in upholding orders of deportation. Read More