Deportation & Removal Practice Notes PDF

10. Deportation & Removal Practice- Revision Syllabus: 10. Deportation & Removal  Awareness of difference between deportation and removal  Knowledge of powers to deport and remove  Knowledge to represent clients subject to deportation Authorities (For further notes see Free Movement notes)  Immigration act 1971: Sections 3(5), 5, 7  Immigration and Asylum Act 1999: Section 10  Nationality, Immigration and Asylum Act 2002: Section 76, 78, 117C  UK Borders Act 2007: Sections 34-38  Borders, Citizenship and Immigration Act 2009: Section 55  Immigration Rules: Part 13  Home Office Guidance: Criminality: Article 8 ECHR cases  ZH(Tanzania) v SSHD UKSC4 – best interest of children  Hesham Ali v SSHD UKSC 60 - ‘very compelling circumstances’  HA (Iraq) v Secretary of State for the Home Department UKSC 22 - unduly harsh test Part 1 Difference Between Removal and Deportation  Know difference between deportation and removal o Deportation v specific – Home Sec does it usually based on serious criminal offending or other risk to national security  But retains discretion for other reasons o Removal is just for failing to comply with entry/visa conditions  i.e. overstaying, working when not permitted etc.  according to Para 320(7B) of the Immigration Rules, an individual forcibly removed from the UK are subject to a mandatory ten year re-entry ban. Powers/Regulations of Removal Immigration and Asylum Act 1999 S10(1): A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it. S10(2): Where a person (‘’P’’) is liable to be or has been removed from the United Kingdom under subsection (1), a member of their family who meets the following three conditions may also be removed…  (3) the first conditions is that the family member is- o (a) P’s partner o (b) P’s child, or a child living in the same household as P in circumstances where P has care of the child, o (c) in a case where P is a child, P’s parent, or o (d) an adult dependent relative of P.  (4) The second condition is that- o (a) in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P; o (b) in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member-  (i) would not, on making an application for such leave, be granted leave in his or her own right, but  (ii) would be granted leave on the basis of his or her family life with P, if P had to enter or remain.  (5) The third condition is that the family member is none of the following o (a) a British citizen o (b) an Irish citizen o (c) a person who has leave to enter or remain in the United Kingdom which was granted by virtue of residence scheme immigration rules. Immigration Act 1971 Schedule 2, Part 1, Paragraph 8: Can be removed if the person is refused leave to enter on arrival. Immigration Rules Part 12, Paragraph 353 and 353A: removal cannot take place pending a decision on further submissions. Part 12, Paragraph 353 and 353B: Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under Paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s: (i) Character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted; (ii) Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable; (iii) Length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused. In deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.  This paragraph does not apply to submission made overseas  This paragraph does not apply where the person is liable to deportation. Removal Process Once Removal Decision is Made Limited Notice of Removal This involves 72 hours to 21 days notice. If a previous removal has failed, the SSHD can withhold the time and date of the flight.  S46(10(a)(7)), Nationality and Borders Act 2022 imposes a duty on the Home Office to give a minimum of 5 working days’ notice of when they are going to be removed from the UK. Although this is an improvement as some notices’ can be as a little as 72 hours, it is only useful when a person can obtain legal advice during that window of time. The Act does not contain any provision for providing legal advice for those served with notice of removal. Accordingly, in and of itself the notice period does not enable effective access to justice. Notice of Removal Directions These give the exact date of departure. There must be a minimum of 72 hours’ notice, including 2 working days. The last 24 hours must include a working day. R (FB (Afghanistan) and Medical Justice) v SSHD EWCA Civ 1338  Ruled that the Home Secretary’s removal policy is unlawful. The policy gave many individuals (often detained) a 72-hour notice period in which to apply for leave to remain in the UK before a three month removal window opened during which they could be removed any time without further notice. The Court held the policy created an ‘unacceptable risk of interference with the right of access to court’ leading to a ‘risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal’. Home Office Policies Arranging the removal – The SSHD can charter an entire aircraft for the purposes of returning a large group. Family Returns Process:  Families enter the family return process if all in-country appeal rights have been exhausted and the family has no legal right to remain in the UK, and ‘’any outstanding documentation or other barriers can be resolved in parallel with the return process’’ OR if a family has indicated that they wish to leave the UK voluntarily (under the assisted voluntary return for families and children scheme; or without assistance).  The Home Office must not make any attempt to remove (or require to leave) a family in the Family Return Process for a period of 28 calendar days, starting from when any in-country appeal rights have been exhausted.  If the family chooses assisted return, the SSHD must explained Part 9 Bans – Those who leave the UK voluntarily at their own expense are ordinarily subject to a mandatory one year re-entry ban. And those who leave the UK at public expense are subject to a 2-5 year re-entry ban.  If voluntary and/or assisted voluntary return is refused, the SSHD must give at least 7 days notice of required return or ensured return o Required return (self check in) o Ensured return (open accommodation, arrest, removal, detention, escorted check in) Priority Removal Notices (S20 Nationality and Borders Act 2022) The Act introduced Priority Removal Notices (PRNs) and is making it mandatory for the Home Office and judges to deem a person’s credibility to be damaged and evidence given ‘’minimal weight’’ unless they can show good reason if they provide evidence after their PRN cut-off date. Any challenges to a PRN will be sent to the Upper Tribunal which is relevant following the Judicial Review and Court Act which removes the ability to judicially review the Upper Tribunal and prevents reconsideration. The PRN provisions give the Home Secretary the power both to expedite appeals and restrict them to one level of the immigration tribunal only, meaning no error made by that single tribunal judge can be picked up. Additionally, if someone affected by this expedited appeal process has a different appeal in progress, that appeal can also be pulled into the expedited system. This has been criticised for subjecting claims which have been made on to a process designed to punish late appeals. Section 25(1)(2), NABA 2022: provides 7 hours of legal aid for civil legal services for those served with a Priority Removal Notice (PRN) which many have deemed to be inadequate given the complexity of immigration law, especially under the new act. How to Resist Removal There is no right of appeal against a removal decision. If a person does not have leave to remain in the UK, they are liable to be removed, unless there is a legal obstacle. This could be: -  A protection, human rights, EU or other claim to be made  Or a pending application  Or a pending appeal with suspensive effect If there is no legal obstacle in place, a person can make a claim if there are new matters or new evidence that have not been considered before and that create an arguable case. Make the application/further submissions and apply for judicial review and an injunction to stop removal pending a decision on the outstanding application/further submissions. Who can be subject to Deportation? Anyone who is not a British citizen:  Includes people with indefinite leave to remain  Includes refugees  Includes family members of the deportee The SSHD has the power to ‘deprive’ a person of their British citizenship or their right of abode. So basically anyone! Automatic Deportation – UK Borders Act 2007 S32 UK Borders Act 2007 S32(4): This puts into statute that deportation of a criminal is for the public good. S32(5); This puts a legislative obligation on the Secretary of State to make a deportation order in respect of a foreign criminal, subject to the exceptions of S33. S32(1): Defines a ‘’foreign criminal’’ as someone: a) Who is not a British citizen b) Who is convicted in the UK of an offence, and c) Who is sentenced to a period of imprisonment of at least 12 months (single not aggregate) S33 UK Borders Act 2007 The obligation in S32(5) does not apply to:  Exception 1 – breach of refugee convention or ECHR;  Exception 2 – under the age of 18 on conviction;  Exception 3 – was EEA, no longer relevant or in force  Exception 4 – extradition cases;  Exception 5 – subject to an order under the Mental Health Act 1983  Exception 6 – Trafficking convention  Exception 7 – Former EEA nationals – settled status; All exceptions bar exceptions 1 and 4 reduce culpability for their crime- See s.33(7) Consider 2002 Act- s.72 states that if you are a serious criminal you cannot rely on S.33(2) of Refugee Convention Immigration Rules, Part 13, Paragraph 391 In the case of a person who has been deported following a conviction for a criminal offence: a) For a period of imprisonment of less than 4 years, the deportation should be continued for 10 years. For a period of imprisonment of at least 4 years, the deportation should be continued indefinitely. Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors. Discretionary/Public Good Deportation Home Office Policy If a foreign criminal does not meet automatic deportation threshold, consideration must be given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good. S3(5) Immigration Act 1971 The SSHD has a discretion to deport a person whose presence is contrary to the public good. S3(6) Immigration Act 1971 The SSHD has a discretion to deport a person, in whose case, the criminal judge recommended deportation, when passing the sentence. Deportation of Family Members S37(1) UK Borders Act 2007 and S3(5)(b) Immigration Act 1971 This provides for the deportation of family members. S5(4) Immigration Act 1971 This defines ‘family members’ as a spouse, civil partner and children under 18. S37(2) UK Borders Act 2007 A deportation order may not be made against a family member if 8 weeks have elapsed since the foreign criminal became appeal rights exhausted. S5(3) Immigration Act 1971 A deportation order may not be made against a family member if 8 weeks have elapsed since the foreign criminal left the UK. Immigration Rules, Part 13 Paragraph 365: The SSHD will not normally decide to deport the spouse or civil partner of a deportee under S5 Immigration Act 1971 where: (i) He has qualified for a settlement in his own right, or (ii) He has been living apart from the deportee Paragraph 366: The Secretary of State will not normally decide to deport the child of a deportee under S5 Immigration Act 1971 where: (i) He and his mother or father are living apart from the deportee; or (ii) he has left home and established himself on an independent basis; or (iii) he married or formed a civil partnership before deportation came into prospect. Deportation Procedure 1. The SSHD issues a notice of liability to deportation, giving a time limit (of 20 working days) for the person to make written representations. 2. The person may be detained under S38 UK Borders Act 2007 and Schedule 3 Immigration Act 1971. 3. Their legal rep makes written representations as to why the person should not be issued with a Deportation Order. This may amount to the making of a protection or human rights claim. 4. The SSHD considers any representations made and decided whether to refuse or grant leave (if a claim has been made). 5. If the representation are accepted, the deportation is revoked and the notice is withdrawn. 6. If the representations/claim are refused: a. The SSHD issues a notice of intention to deport under S3(5) Immigration Act 1971 and/or a Deportation Order under S32 UK Borders Act 2007. i. S24(1)(a) Immigration Act 1971: it is a criminal offence to breach a deportation order ii. A deportation order requires someone to leave the UK, prevents them to re- enter whilst it is in place and invalidates any leave b. If a protection/HR or EU based claim was refused, there will be a right of appeal. Cannot appeal the decision to deport. i. If the appeal is allowed and fully determined, the deportation is revoked and the notice withdrawn. ii. If the appeal is dismissed and the deportee is appeals rights exhausted, removal action can commence Revocation of leave in Deportation Proceedings S5(1) Immigration Act 1971 A deportation order under S3(5) Immigration Act 1971 invalidates any leave to enter, leave to remain or indefinite leave to remain. S32 UK Borders Act 2007 A deportation order under s32 UK Borders Act 2007 does not invalidate leave while an appeal is outstanding. S76(1) Nationality, Immigration and Asylum Act 2022 The SSHD may revoke ILR if: a) A person is liable to deportation, but b) Cannot be deported for legal reasons. S78 Nationality, Immigration and Asylum Act 2022 The deportee cannot be removed whilst an appeal is pending, until someone is appeals rights exhausted. Challenging Deportation EEA citizens and their family members  For relevant conduct that occurred before the end of the Implementation Period (IP) (11 pm on 31 December 2020) EEA citizens and their family members benefit from retain EU law. – see GS notes.  For conduct and refusal of entry from the end of the IP, EEA citizens and their family members are no longer protected by EU law. Part 5, Immigration (EEA) Regulations 2016 Regulation 23 Enforcement Action (immigration detention, deportation or removal) against a person with EU treaty rights and/or right to reside under these regulations, can only be taken on grounds of  Public policy  Public safety  Public health Regulation 27 This relates to decisions taken on ground of public policy, public security and public health.  A person who has acquired a right to permanent residence (i.e. 5 years with a right to reside) can only be detained or excluded on serious grounds of public policy or security.  A person who has lived in the UK for at least 10 years prior to the enforcement decision can only be detained or excluded on imperative grounds of public policy.  The same applies to a person under 18, unless the enforcement action is in her/his best interests. Regulation 27(5): Public policy and public security decisions must accord with these principles: a) Proportionality b) Based exclusively on the subject’s personal conduct c) The personal conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and that the threat does not need to be imminent d) Matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision e) Previous criminal convictions do not in themselves justify the decision f) may be taken on preventative grounds, even in the absence of a criminal conviction, provided the grounds are specific to the person. Public interest considerations in Article 8 challenges to removal and deportation Sections 117A to 117D of the 2002 Act provide the structure for an assessment under article 8 of the European Convention on Human Rights (ECHR) and it is inappropriate to conduct a further free- standing article 8 assessment outside the statutory structure. It is for the appellant to show that article 8(1) of the ECHR is engaged and if so, it is for the respondent to show that the decision was in accordance with the law, made in pursuit of a legitimate aim and that it was proportionate to the legitimate aim. The standard of proof is the balance of probabilities. Removal and Deportation S117B Nationality, Immigration and Asylum Act 2002: (1) the maintenance of effective immigration controls is in the public interest (2) it is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because person who can speak English- (a) are less of a burden on taxpayers, and (b) are better able to integrate into society. (3) it is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons- (a) are not a burden on taxpayers, and (b) are better able to integrate into society (4) little wright should be given to- (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK unlawfully. (5) Little wright should be given to a private life established by a person at a tie when the person’s immigration status is precarious (6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where- (a) The person has a genuine and subsisting parental relationship with a qualifying child, and (b) It would not be reasonable to expect the child to leave the United Kingdom. Only Deportation S117C Nationality, Immigration and Asylum Act 2002: (1) The deportation of foreign criminals (C) is in the public interest (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (‘’C’’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where- a. C has been lawfully resident in the United Kingdom for most of C’s life, b. C is socially and culturally integrated in the United Kingdom, and c. There would be a very significant obstacles to C’s integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh, (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at last four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsection (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted. Immigration Rules Part 13, Paragraphs 398: Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and (a) The deportation of the person from the UK is conductive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years (b) The deportation of the person from the UK is conductive to the public good and in the public interest because they haven convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or (c) The deportation of the person from the UK is conductive to the public good and in the public interest because, in the view of the SoS, their offending has caused serious harm or they are a persistent offender shows a particular disregard for the law, the SoS in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A. Paragraphs 399 and 399A provide for exceptions to deportation on the grounds of family and private life respectively. The exceptions in paragraphs 399 and 399A mirror (albeit not exactly) the exceptions in section 117C of the 2002 Act. It is for the appellant to demonstrate that one or both of the exceptions is satisfied on the balance of probabilities. Immigration Rules, Part 13, Paragraph 399(a) This paragraph applies where paragraph 398(b) or (c) applies if- (a) The deportee has a genuine and subsisting relationship with a child who is in the UK and (i) Child is a British citizen or (ii) Has 7 years residence immediately before the decision and (iii) It would be unduly harsh for child to live in country of removal and (iv) It would be unduly harsh for child to remain in UK without deportee (b) The person has a genuine and subsisting relationship with a partner who is in the UK and the partner is a British citizen or settled and (i) The relationship was formed when the deportee was in the UK lawfully and their immigration status was not precarious and (ii) It would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and (iii) It would be unduly harsh for that partner to remain in the UK without the person who is to be deported. Immigration Rules, Part 13, Paragraph 399A This paragraph applies where paragraph 398(b) or (c) applies if- (a) The person has been lawfully resident in the UK for most of his life and (b) He is socially and culturally integrated in the UK; AND (c) There would be very significant obstacles to his integration into the country to which it is proposed he is deported Immigration Rules, Part 13, Paragraph 399B Where an Article 8 claim from a foreign criminal is successful: (a) A person without leave may be granted up to 30 months’ leave to remain (LTR) (b) If the order has not been served any limited LTR may be curtailed to a max 30 months’ LTR (c) Indefinite leave to remain (ILR) may be revoked under section 76 NIAA02 and LTR granted to a max 30 months (d) Revocation does not confer entry clearance, LTE, LTR or reinstate previous leave (all with such conditions as the SSHD considers appropriate) Deportation Case Law Hesham Ali v SSHD UKSC 60  Found that the Immigration Rules 1. Are not the law on Article 8 and do not govern the determination of appeals. 2. give effect to the policies of SSHD and… are therefore a relevant and important consideration for Tribunals determining Human Rights Appeals. JO and others (section 55 duty) Nigeria UKUT 517 (IAC)  the question of whether the duties imposed by s.55 have been duly performed in any given case will inevitably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently, as in the present case, be confined to the application or submission made to the SoS and the ultimate letter of decision. HA (Iraq) v SSHD (rev 1 ) EWCA Civ 1176  Underhill LJ rejected the ‘comparative approach’ to the ‘unduly harsh’ test in KO (Nigeria) and opened the way for a less stringent application, based on all relevant factors (age, nature of relationship with deportee, financial and other consequences of deportation, child’s characteristics). ZH (Tanzania) v SSHD UKSC 4  The Supreme Court unanimously held that the best interests of the child had to be considered and given paramount wright as part of the assessment of proportionality under Article 8 ECHR. Kiarie & Byndloss v SSHD [2017#] UKSC 42  The Court of Appeal concluded that Section 94B certifications could be examined by a court for ‘’’Wednesbury’’ unreasonableness, so making these certifications liable to being quashed on judicial review. AM (Somalia) v SSHD EWCA Civ 774  The mere fact that an appellant has been present in the UK from a young age and the absence of any family or other connections with the country of return is not a trump card; such factors are unlikely to be outweighed by any serious and persisting offending, at. Cl (Nigeria) EWCA Civ 2027  Clearly, however, the impact of offending and imprisonment upon a person’s integration in this country will depend not only on the nature and frequency of the offending, the length of time over which it takes place and the length of time spent in prison, but also on whether an how deeply the individual was socially and culturally integrated in the UK to begin with. In that regard, a person who has lived all or almost all his life in the UK, has been educated here, speaks no language other than (British) English and has no familiarity with any other society or culture will start with much deeper roots in this country than someone who has moved here at a later age. It is hard to see how criminal offending and imprisonment could ordinarily, by themselves and unless associated with the breakdown of relationships, destroy the social and cultural integration of someone whose entire social identity has been formed in the UK. No doubt it is for this reason that the current guidance (‘’Criminality Article 8 ECHR cases’’) that Home Office staff are required to use in deciding whether the deportation of a foreign criminal would breach article 8 advises that: ‘’If the person has been resident in the UK from a very early age it is unlikely that offending alone would a person is not social and culturally integrated.’’ At. Maslov v Austria 1638/03 ECHR 546  For a settled migrant who has lawfully spent all or the majority of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. Uner the Netherlands (Application 46410/99)  Developed the Boultif criteria for assessing whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim of preventing disorder or crime. Must balance the interests of family, circumstances of case, the applicant’s offence and the interests of society. SSHD V Kamara EWCA Civ 813  It is not confined to the mere ability to find a job or sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a Court or Tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgement to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to cooperate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substantive to the individual’s private or family life. NA (Pakistan) & Another v SSHD EWCA Civ 662  In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are ‘’sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2’’. If there are then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria)), there is no room for a general Article 8 evaluation outside the 2014 rules, read with section 117A-D of the 2002 Act. – LJ Jackson at.  In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect or family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are ‘’very compelling circumstances, over and above those described in Exceptions 1 and 2’’ as is required under Section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6)- LJ Jackson at. Part 9, Immigration Rules: General Grounds of Refusal Mandatory grounds of refusal  SSHD has issued an exclusion of deportation order (10-year ban)  12-month sentence / persistent offender / serious harm  Visit application: less than 12-month sentence, non-custodial sentence, out-of-court settlement (12-month ban).  Deception used in the application Discretionary grounds of refusal  Less than 12-month sentence, non-custodial sentence, out-of court settlement  Excluded under refugee or HP rules  Sham Marriages  False representations / failure to disclose Part 9, Immigration Rules: Previous Breaches  Overstayed more than 30 days  Overstayed and paragraph 39E did not apply  Breached a condition of their leave  Illegal entrant  Used deception in an application Entry Clearance bans  Left the UK voluntarily at own expense – 12 month ban  Left UK voluntarily at public expense, within 6 months of removal notice or becoming ARE – 2 year ban  Left UK voluntarily at public expense, more than 6 months after removal notice or becoming ARE – 5 year ban  Left or removed as a result of a caution and any time-ban has expired – 5 year ban  Deported or removed at public expense – 10 years  Used deception in an application – 10 year ban Notes on Deportation The law and burden and standard of proof Section 32(1) of the UK Borders Act 2007 defines a ‘foreign criminal’ as a person who is not a British citizen and who is convicted in the United Kingdom of an offence and is sentenced to a period of imprisonment of at least 12 months. Section 32(4) conclusively treats the deportation of a foreign criminal as conducive to the public good and section 32(5) provides that the respondent must make a deportation order in respect of a foreign criminal subject to section 33. Paragraph 396 of the Immigration Rules mirrors section 32 but is subject to paragraph 397. Paragraph 397 and section 33 provide exceptions to deportation, which include where removal will be contrary to the United Kingdom’s obligations under the Refugee Convention, the ECHR or under EU treaties. Section 72 of the 2002 Act applies in relation to exclusion from protection under article 33(2) of the Refugee Convention. Subsection (2) provides that a person is presumed to have been convicted of a particularly serious crime and to constitute a danger to the community where he is convicted of an offence in the United Kingdom and is sentenced to a period of imprisonment of at least two years (now 12 months). Where this provision applies, the respondent will issue a certificate to that effect which is subject to rebuttal by the appellant. S72 is essentially a presumption that the applicant is a danger to society. Subsection (10) provides that in considering an appeal the tribunal must first consider the certificate and if it finds the presumption in subsection (2) applies, then it must dismiss the appeal on grounds relating to the Refugee Convention. Only where it is found that the presumption does not apply can the tribunal go on and consider the protection claim substantively. Subsection 10 essentially says that if the appellant rebuts the presumption in s72 that he is a danger to society, the tribunal will not uphold the Secretary of State’s certificate under s72 saying he is a danger to society. Paragraph 334 of the Immigration Rules provides that an applicant will be granted refugee status if the respondent is satisfied that the criteria of that provision are met. The applicant must be in the United Kingdom; demonstrate that he falls within the definition of a refugee in regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (the Qualification Regulations) and is not excluded from protection by article 1A of the Refugee Convention. The appellant must show that there are substantial grounds for believing that he is outside his country of nationality or former habitual residence because of a well-founded fear of persecution because of his political opinion, religion, nationality, race or membership of a particular social group and because of that fear he is unable or unwilling to avail himself of the protection of that country. Paragraph 339C of the Immigration Rules provides that an applicant who does not qualify as a refugee will be granted humanitarian protection if the criteria of that provision are met. The appellant has to show that there are substantial grounds for believing that he would face a real risk of suffering serious harm and that owing to such risk he is unable or unwilling to avail himself of the protection of the country of return. The appellant must show that there is a serious possibility, a reasonable degree of likelihood or a real risk that he will face persecution or suffer serious harm. The standard of proof is lower than the ordinary civil standard of balance of probabilities. In relation to an alleged breach of article 3 of the ECHR, the appellant must show that there are substantial grounds for believing that he will be exposed to a real risk of torture, or inhuman or degrading treatment or punishment. Article 3 is absolute and does not permit any justification or exclusion. Paragraphs 399 and 399A provide for exceptions to deportation on the grounds of family and private life respectively. The exceptions in paragraphs 399 and 399A mirror (albeit not exactly) the exceptions in section 117C of the 2002 Act. It is for the appellant to demonstrate that one or both of the exceptions is satisfied on the balance of probabilities. Sections 117A to 117D of the 2002 Act provide the structure for an assessment under article 8 of the European Convention on Human Rights (ECHR) and it is inappropriate to conduct a further free-standing article 8 assessment outside the statutory structure. It is for the appellant to show that article 8(1) of the ECHR is engaged and if so, it is for the respondent to show that the decision was in accordance with the law, made in pursuit of a legitimate aim and that it was proportionate to the legitimate aim. The standard of proof is the balance of probabilities. Section 117C of the 2002 Act provides: 117C Article 8: additional considerations in cases involving foreign criminals (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to C’s integration into the country to (c) which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted. 9. Detention Practice- Revision Syllabus: 9. Detention  Knowledge required to advise on liability to be detained  Knowledge of Immigration Bail, and drafting bail applications to the Home Office  Competence to write to Home Office to vary conditions of Immigration Bail  Competence required to advise clients on detention, and immigration bail (Home Office and Tribunal)  Competence in applying to the Secretary of State for immigration bail  Competence in gathering and commissioning evidence to support applications for bail  Competence in applying for Tribunal bail  Competence to prepare a bail application for hearing in the Tribunal (gathering evidence, preparing witnesses, serving and filing evidence, preparing client, instructing Advocate /drafting skeleton argument)  Awareness that unlawful detention can be challenged by way of JR or habeas corpus Authorities  Schedules 2 & 3 Immigration Act 1971  Section 62 Nationality, Immigration and Asylum Act 2002  Section 36 UK Borders Act 2007  Immigration Act 2016: Schedule 10  HO Guidance: Adults at Risk in Immigration detention  Pregnant Women in Detention  Immigration Act 2016: Section 61(1) and (2)  First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014 (consolidated version): Part 5  Guidance on Immigration Bail for Judges of the First-tier Tribunal  R (on the application of Singh) v Governor of Durham Prison 1 WLR 704 (QB): Hardial Singh principles in detention cases. Part 1 Powers of Detention Home Office Policy Guidance: Detention: interim instruction for cases in detention who have claimed asylum, and for entering cases who have claimed asylum into detention Asylum claims made at the Asylum Intake Unit, at port or once apprehended as a clandestine that might be suitable of detention because there is a reasonable likelihood of certifying the claim as clearly unfounded and of removing the individual within a reasonable timeframe, or other exceptional circumstances, should be referred to the Detention Gatekeeper after screening has taken place for an assessment of suitability for detention. Detained Asylum Casework An individual can be detained where there is a reasonable likelihood of certifying the claim as clearly unfounded and removing the individual within a reasonable timeframe.  However, judges should not tolerate delays in the examination of protection claims – Presidential Guidance Note No 1 of 2018 Guidance on Immigration Bail for Judges of the FTT Hossain and Others v SSHD EWHC 1331 (Admin)- Determined that detaining someone in this situation was not unlawful - The stayed cases and any new DAC challenge will now need to be refocussed on the claimant’s vulnerability engaging the protected characteristics in the Equality Act 2010, in addition to the existing procedural fairness submissions directed at the individual’s circumstances (e.g. the need for a medical report, country report, obtaining of documents, translations and other witness evidence etc). As well, consideration will need to be paid specifically to whether there is a ground of challenge relating to unlawful detention in any event, particularly in cases where there is a rule 35, a pending trafficking investigation and / or other features which would not justify continued detention under EIG 55 and / or common law. In the absence of any further ruling, the interim order of 24 March 2016, which suspended the DAC process for any claimant providing proof issue to the SSHD pending the Court’s decision on interim relief in their case, now ceases to have effect. Statutory Powers Paragraph 16, Schedule 2, Immigration Act 1971: Power to detain at port to examine suitability for entry, pending administrative removal (a decision to give or refuse him leave to enter). Paragraph 2, Schedule 3, Immigration Act 1971 and S36 UK Borders Act 2007: Power to detain pending deportation. Section 62 Nationality, Immigration and Asylum Act 2002: Power to detain pending a decision or removal of the person. See Other Detention Notes for More Analysis of these provisions Detention: General instructions, version 2.0 Page 14 – Sets out some general factors influencing decision to detain: 1. What is the likelihood of the person being removed and, if so, after what timescale? 2. is there any evidence of previous absconding? 3. Is there any evidence of a previous failure to comply with conditions of immigration bail? 4. Has the subject taken part in a determined attempt to breach the immigration rules? 5. Is there a previous history of complying with the requirements of immigration control? 6. What are the person’s ties with the UK? 7. What are the individual’s expectations about the outcome of the case? 8. Is there a risk of offending or harm to the public? 9. Is the subject under 18? 10. Is the subject an adult at risk? Limitation/Regulation of Powers Case Law Saadi v UK ECHR 80: Detention for a quick decision in an asylum claim is lawful. R (Hardial Singh) v Governor of Durham Prison EWHC 1 (QB) (in this case when you read ‘deport’ also read ‘removal’) 1. The SSHD must intend to remove the person and can only use the power to detain for that purpose 2. The deportee may only be detained for a period that is reasonable in all the circumstances a. (this is backword looking – has the reasonable period expired yet?) 3. If, before the expiry of the reasonable period, it becomes apparent that the SoS will not be able to effect removal within that reasonable period, he should not seek to exercise the power of detention a. (This is forward looking – is it already known that removal cannot be effected within the reasonable period?) b. When considering if it is a reasonable period, have to balance factors such as: i. What are the barriers to removal ii. What vulnerabilities does the individual have iii. What travel documents does the client need iv. What is the risk of them absconding v. Do they have criminal offences 4. SSHD should act with reasonable diligence and expedition to effect removal Distinction between the second and third principles was discussed by Dyson LJ in R (I) v SSHD INLR 196, at :  ‘’principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person ‘’pending removal’’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.’’ On principle 3, see also Lord Dyson in Lumba v SSHD 1 AC 245 at para 103:  There may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport within a period that is reasonable in all circumstances, having regard in particular to time that the person has already spent in detention… if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful. See also Michael Fordham QC in Ademiluyi v SSHD EWHC 935 (Admin)  ‘’The question in such a case is not whether the reasonable period has now expired. That question is the application of Hardial Singh 2. The question under Hardial Singh 3 is whether it is already clear that by a future date, in which a reasonable period will have expired, the Secretary of State will not have been able to effect removal. Hardial Singh 3 projects forward to a period which will expire at some stage in the future.’’ R(I) v SSHD at : the conditions in which an individual is detained (and their own condition, including position as a torture victim) is obviously relevant to how long is too long for the purposes of principles two and three.  The Secretary of State must therefore inform himself about these conditions, e.g. O v SSHD UKSC 19. R v Home Secretary, Ex Parte Khawaja AC 74: Introduced two key principles: 1. The court is to determine the reasonableness of detention objectively themselves. – So, the Court does not just assess rationality of D’s decision, but makes their own decision on whether it is reasonable. 2. The burden of justifying detention is on the Defendant in principle Lumba v SSHD (2011) UKSC 12: The Supreme Court considered the legality of detaining foreign nationals who had completed prison sentences for criminal offences, pending their deportation. It was concluded that their detention was unlawful: the policy under which they had been detained had not been published and was inconsistent with published policy. Policy When you are detained, you need to be given your reason for your detention in Form IS91R at the time of their initial detention. They must also be informed of their bail rights – Detention: General Instructions, Version 2.0, Page 25. Detention reviews must be conducted monthly, every 28 days. These are authorised by officers of escalating seniority every month. – Detention; General instructions, version 2.0, Page 30  Kambadzi UKSC 23 holds that the failure to conduct detention reviews in accordance with published policy renders a detention unlawful. Article 5 ECHR Right to liberty and security of person Retained EU Law For conduct that happened before the end of the Implementation Period (so before 11pm on 21 December 2020), EEA citizens and their family members benefit from retained EU law which gives them enhanced protection against detention and exclusion. Any conduct after the end of the Implementation Period, EEA citizens and their family members do not benefit from EU law. Detention of pregnant women This is unlawful under Home Office policy (c55a) on the detention of pregnant women. Detention may only be extended beyond 72 hours with ministerial authority. S60 Immigration Act 2016: A pregnant woman can only be detained where the SSHD is satisfied that: a) The woman will ‘’shortly’’ be removed from the UK or o Chapter 55A: defines ‘’shortly’’ in S60 as meaning that removal is planned or likely to take place within 7 days and expected to take place within 72 hours. b) There are exceptional circumstances which justify the detention o Chapter 55A: defines ‘’exceptional circumstances’’ as issues relating to the risk of public harm, e.g. criminality or national security. There is a duty to have regard to a pregnant women’s welfare, considering things such as: steps of pregnancy, complexity of pregnancy, special care/treatment, appointments etc. Detention of Children S5 Immigration Act 2014: This amends Sch 2 of the Immigration Act 1971 to provide some safeguards on detention of unaccompanied minors. It restrict the detention of unaccompanied minors to short-term holding detention facilities, and then only for 24 hours on certain conditions. There are some exceptions. Adults at Risk Policy Legislative Background S59 Immigration Act 2016 – Required the SSHD to issue guidance when someone would particularly vulnerable to harm in detention and when it is appropriate to release in those circumstances. Pursuant to S59 of the Immigration Act 2016, the Home Office issued statutory guidance, Immigration Act 2016: Guidance on Adults at Risk in Immigration Detention where it was noted that the stated intention of the AAR guidance will be to ‘’lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal. It aims to introduce a more holistic approach to the consideration of individual circumstances, ensuring that genuine cases of vulnerability are consistently identified, in order to ensure that vulnerable people are not detained inappropriately.’’ [para. 1]. Who is an Adult at Risk? Either:  Someone who declares…  There is medical evidence to show…  Observations from members of staff lead to a belief that… o …they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence) that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention. Level of Risk: ARA Casework Guidance, V8.0 sets out three evidence levels of risk:  Level 1 o Self Declaration  Level 2 o Professional evidence (e.g., from social worker, medical practitioner) or official documentary evidence, which indicates that the individual is an adult at risk. o Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.  Level 3 o Professional evidence stating that the individual is at risk and that a period of detention would be likely to cause harm, for example, by increasing the severity of the symptoms or condition. o Representations from the individual’s legal representative acting on behalf of their immigration matter would not be regarded as professional evidence in this context. Once a level is determined, there will be an assessment of the identified risk against immigration considerations:  Level 1: o Where there is no independent evidence that a person is at risk claimed, the individual will be suitable for consideration for detention if one of the following applies: 1. The date of removal can be forecast with some certainty and if this date is within a reasonable timescale given the logistics involved 2. Any public protection issues are identified, for example 3. there are indicators of non-compliance with immigration law which suggest that the individual will not be removable unless detained  Level 2: o Where is professional and/or official documentary evidence indicating that an individual is an adult at risk but no indication that detention is likely to lead to a significant risk of harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies: 1. The date of removal is fixed or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities, or if the individual is being detained at the border pending removal having been refused entry to the UK 2. They present a level of public protection concerns that would justify detention 3. There are negative indicators of non-compliance which suggest that the individual is highly unlikely not to be removable unless detained.  Level 3: o Where on the basis of professional and/or official documentary evidence, detention is likely to lead to a risk of harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies: 1. Removal has been set for a date in the immediate future, there are no barriers to removal, and escorts and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual’s return and the individual has not complied with voluntary or ensured return 2. The individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern. ARA Casework Guidance, V8.0 – ‘’caseworkers should not usually disagree with medical evidence unless there are very strong reasons for doing so – for example, a finding by an independent tribunal that rejects the same evidence or credibility concerns arising from other sources (such as an asylum casework decision)’’  We are seeing that the HO are not following this, they are finding other ways to reject medical evidence e.g. by seeking alternative opinions from healthcare.  Also see new requirements for External Medical Reports at page 16 and heightened requirements on external healthcare professionals and legal representatives when producing MLRs, which may be unlawful  They have also introduced an interim guidance where they may seek a ‘second opinion’ on an external MLR where they get their own doctor to assess – rarely used so far, Medical Justice are currently challenging it. The Detention Centre Rules (DCRs) 2001 Made under S153 of the Immigration and Asylum Act 1999, which requires rules to be made for the ‘’regulation and management’’ of removal centres. Rule 34 Reports  Within 24 hours arrival, everyone should be given a full physical and mental examination by a doctor which could lead to a Rule 35 if a vulnerability is identified. Rule 35 Reports Rule 35 of the DCRs sets out the requirement for doctors working in immigration removal centres to report on any detained person:  Rule 35(1) o Whose health is likely to be injuriously affected by continued detention or any conditions of detention o Ouseley J in Medical Justice that R35(1) is ‘’equivalent to evidence of Level 3’’  Rule 35(2) o Who is suspected of having suicidal intentions. o If this happens, they will make a report to the HO and place the individual under special observations o Challenge to systematic failure of R35(2) /ACDT system in our case of IS (Bangladesh) v SSHD EWHC 2700 – Johnson J found a ‘’powerful case that the current system was not working’’ finding the discrepancies between ACDTs opened and R35(2) ‘’striking’’ – however, despite being highly critical, did not go so far as to find the rule irrational [204-206].  Rule 35(3) o For whom there are concerns they may have been a victim of torture o Generally equivalent to a Level 2. o Attempt to restrict definition of torture to state actors only found to be unlawful in Medical Justice. o In 2018, Home Office added 35(6) to DCRs to define torture to reflect the findings in Medical Justice:  6) any act by which a perpetrator intentionally inflict severe pain or suffering on a victim in a situation in which – (a) The perpetrator has control (whether mental or physical) over the victim, and (b) As a result of that control, the victim is powerless to resist Rule 35(4): the manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay. The SSHD has to respond to a Rule 35 in 48 hours (2 working day). Part 2 Indicators of Risk: Stresses that list of indicators not intended to be exhaustive – Page 8, ARA Casework Guidance, V8.0.  Serious physical disability  Serious physical health conditions or illnesses  Mental health conditions  Potential victims of trafficking or modern slavery  Age  Pregnant women  Transgender and intersex people For Adults at Risk:  The detention decision maker should assess whether there is a realistic prospect of removal within a reasonable timescale. o There is not…  The individual should not be detained o There is…  An individual at risk should be detained, only if the immigration factors outweigh the risk factors, such as to displace the presumption that individuals at risk should not be detained  This consideration should involve a weighing of the evidence-based level of risk to the individual against: 1. How quickly removal is likely to be affected 2. The compliance history of the individual 3. Any public protection concerns Unlawful Detention / Challenging Detention If a person is detained unlawfully (e.g. no imminent removal) you can apply at the High Court for judicial review and interim relief (an injunction) to have the person released pending consideration of the JR.  This can be done under an immigration or public law legal aid contract  Need to do an application for urgent interim relief and/or expedition. To do so, along with our N461 claim form we will file an N463 application for urgent consideration seeking urgent directions from the court. o A claim for release from detention has virtually absolute priority over all other court business: R v Home Secretary, ex parte Cheblak. o Need to show that you have added expeditiously, but that you are acting reasonably – so consider things like:  How vulnerable is client  How is detention impacting them  Do they have a release address? Do they need HO accommodation? HO may be given a grace period for practical release issues such as accommodation to be resolved – fact sensitive – see e.g. AC (Algeria) v SSHD EWCA Civ 36, and Merca v SSHD EWHC 1479  How urgent it is – Greater urgency = greater justification for short deadlines, but this also has to be balanced by the court’s resources and the opportunity for the SSHD to put in any response/defence The individual can claim damages for unlawful detention, often once JR is transferred to the county court. SK (Zimbabwe) v SSHD UKSC 23: a breach of policy, in this case the failure to conduct detention reviews, can render detention unlawful. Immigration Bail Detention: General Instructions, Version 2.0: Page 6: There is a presumption in favour of Bail  Still presumption of immigration bail in FNO cases but in general the risk of re-offending and absconding are always going to be of more weight than in non-criminal cases (Page 7)  ‘’Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality.’’ (Page 8). ‘’Detention must be used sparingly, and for the shortest period necessary.’’ (Page 7). A grant of immigration bail ends when the person to whom it is granted is:  No longer liable to be detained and the Secretary of State is not considering whether to make a deportation order against the person  Granted leave to enter or remain in the UK  Detained  Removed from, or otherwise leaves, the UK Kaitey v SSHD EWCA Civ 1875  A person can be held on immigration bail if they cannot be removed/detained Immigration Act 2016, Part 1 Section 61(1): Schedule 10 (Immigration Bail) has effect. Section 61(2): in that schedule, (1) part 1 contains the main provisions about immigration bail, and (b) part 2 contains amendments to other acts. Paragraph 1, Schedule 10: gives the SSHD (1) and the Tribunal (3) the power to grant bail to people detained under specified detention powers. Paragraph 6, Schedule 10: gives the SSHD and the Tribunal the power to vary bail. Paragraph 2, 4 and 5: sets out the conditions of bail – the optional electronic monitoring condition (Paragraph 4 to Schedule 10 Immigration Act 2016) and at least one other condition:  Requirement to appear before SSHD or FTT at specified time and place  Restriction on work, occupation or studies  Residence restrictions – Paragraph 9 to Schedule 10 Immigration Act 2016 on accommodation and SSHD duties to provide accommodation in certain circumstances where residence requirement for bail required  Requirement to report to SSHD or other person, usually on a regular basis  Such other conditions as the person granting bail thinks fit Paragraph 3(2): The SSHD and Tribunal must consider when granting bail: a) The likelihood of the person failing to comply with a bail condition b) Whether the person has been convicted of an offence c) The likelihood of a person committing an offence while on immigration bail d) The likelihood of the person’s presence in the United Kingdom, while on immigration bail, causing a danger to public health or being a threat to the maintenance of public order e) Whether the person’s detention is necessary in that person’s interests or for the protection of any other person, and f) Such other matters as the SSHD or the FtT thinks relevant Nationality and Borders Act 2022 adds, from 28 June 2022, to Paragraph 3(2) the following factors to consider as well: (ea) whether the person has failed without reasonable excuse to cooperate with any process- (i) For determining whether the person requires or should be granted leave to enter or remain in the United Kingdom, (ii) For determining the period for which the person should be granted such leave and any conditions to which it should be subject, (iii) For determining whether the person’s leave to enter or remain in the United Kingdom should be varied, curtailed, suspended or cancelled, (iiii) For determining whether the person should be removed from the United Kingdom, or (v) For removing the person from the United Kingdom. Applying for Bail From any point after day 1 of detention: Apply to the SSHD on form BAIL 401.  HO’s Immigration Bail Guidance (Page 65) states decision on SSHD bail must be made within 10 working days. From any point after day 9 of detention: Apply to FtT on form B1, with bail submissions and supporting documents.  May consider whether you want a surety/financial condition to support your bail application to assist with absconding risk etc – but not mandatory – see also financial conditions at Paragraph 5 to Schedule 10 Immigration Act 2016.  FTT will normally list bail hearing within 3 working days of bail application o Judge may grant bail-in-principle if e.g. believes bail is appropriate but accommodation not yet approved/in place – will usually set 28 days for accommodation to be found with update to FTT if not released in period o Judge will decide bail conditions if FTT grant, but if SSHD considers bail should be transferred to SSHD to manage, they must make submissions at the hearing and get judge to agree to this.  Bail cannot be granted by the Tribunal for the first 8 days of detention after a person’s detention without consent of SSHD.  Paragraph 3(4), Schedule 10, Immigration Act 2016: Bail cannot be granted by the Tribunal, without the consent of the SSHD, where removal directions are in force and removal is within 14 days of the bail hearing.  Paragraph 12, Schedule 10 Immigration Act 2016: Tribunal must dismiss a bail application, made within 28 days of a previous Tribunal refusal of bail, unless there has been a material change of circumstances (for example, removal directions have been cancelled). For varying the conditions of bail: 1. Apply to FtT on form B2 2. Write to the SSHD – Paragraph 6, Immigration Act 2016 provides the power to vary bail conditions: a. The SSHD has the power to amend or remove any of the conditions on a person’s Immigration Bail. b. If Immigration Bail was granted by the FTT, the SSHD may exercise this power if the Tribunal so directs. c. If the SSHD refuses to exercise this power, she must give notice to the person who is on Immigration Bail. Schedule 10, Immigration Act 2016 The Home Office can provide accommodation and financial support to a person who is subject to immigration bail. An application for schedule 10 support on human rights grounds needs to be made on form BAIL 409. The person must be able to show that they meet all of the following requirements: 1. They are on immigration bail. 2. They have a bail condition requiring them to live at a specified address and need accommodation to be able to comply with this. 3. There are exceptional circumstances why support is needed, which are limited to three grounds: a. A grant of bail by the Special Immigration Appeal s Commission that includes a residence condition b. The person (if an offender) being assessed as being at high risk of causing harm c. When accommodation is necessary to avoid the person suffering a breach of human rights (inhuman or degrading treatment) due to their situation of destitution. Accelerated Detained Appeals S27, Nationality and Borders Act 2022 The Act created a fast track process for asylum appeals. This system was previously under the name of ‘Detained Fast Track’, which was found to be illegal in 2015. It is now being presented under the name ‘accelerated detained appeals’. The criteria for accelerated detained appeals is:  the person is in detention  the case is of a description prescribed by regulation  it is the Secretary of State’s opinion that the appeal ‘’would be likely to be disposed of expeditiously’’ Concerns have been raised over the fact it does not require any consideration of whether the appeal can be dealt with fairly if it is decided on an accelerated basis and there is no requirement for the appellant to receive competent legal advice or representation nor time to ensure they have adequate time to get essential evidence (medico-legal reports, expert evidence, or documentary and witness evidence). There is also concern over the fact that there is no requirement to provide access to an interpreter if the individual does not speak sufficient English. Under s27(3)(a), any notice of appeal must be given to the First-tier Tribunal not later than 5 working days after the date on which the appellant was given notice of the decision against which the appeal is brought and the First-tier Tribunal will make a decision within 25 days. 7. Domestic Abuse & Violence Practice- Revision Syllabus: 7. Domestic Abuse and Violence  Awareness of applications for ILR as a victim of domestic violence or abuse  Knowledge to make applications for ILR for victims of domestic abuse  Competence to make applications for Discretionary Leave under the destitution domestic violence concession  Knowledge to make applications for a family member who has retained the right of residence as a victim of domestic violence or abuse under Appendix EU  Competence to make applications for ILR for victims of domestic abuse  Competence to make applications for a family member who has retained the right of residence as a victim of domestic violence or abuse under Appendix EU  Competence to conduct applications for Administrative Review of Domestic Abuse refusals  Competence to conduct Administrative Review and appeals of Domestic Violence or Abuse refusals under Appendix EU Authorities  Immigration Rules: Appendix FM: Section DV  Immigration Rules: Appendix FM: Section S-ILR  HO Guidance: Victims of domestic violence and abuse  HO Guidance: Destitute domestic violence (DDV) concession  Immigration Rules: Appendix EU: Validity and Suitability sections, and Eligibility for those with retained rights  HO Guidance: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members (Section ‘A relevant family relationship with a relevant EEA citizen (or with a qualifying British citizen or relevant sponsor) has broken down permanently as a result of domestic violence or abuse  Ishtiaq v Secretary of State for the Home Department EWCA Civ 386: evidence  LA (para 289A: causes of breakdown) Pakistan UKAIT 00019: the relationship may have ended whilst victim remains in marital home Detailed Notes Part 1 Under Paragraph 28, Sch 1 Part 1 LASPO 2012, applications for ILR under the domestic violence rules, are in scope. Domestic Violence Government Definition: Any incident or patterns of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:  Psychological  physical  sexual  financial  emotional Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive behaviour is an act of pattern of acts of assault, threats humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. The perpetrator: they do not say who the perpetrator of the domestic violence/abuse must be, but call for evidence that the relationship broke down permanently because of the domestic violence/abuse. Destitution Domestic Violence Concession (no fee)  This is to enable victims to leave the abusing partner and access public funds and refugee accommodation while a SET(DV) application is being considered  Steps: o Submit application form ‘DV notification form’ by email. Can submit by post but takes longer o Must have been in the designated category of leave and provide details of accommodation and finance. o No DV evidence required. o Decisions are very fast – from half a day to a week o Grant of 3 months’ leave with recourse to public funds o Will be issued with a BRP and a letter confirming ‘habitual residence’ for benefits and housing applications. o Must make full SET(DV) application within3 months. Legal Requirements for ILR as a victim of domestic abuse Appendix FM Section DVILR:  The applicant’s first grant of leave within must have been: o As a partner on the 5 year route to seeltement i.e. as the spouse, civil partner or unmarried partner of one of the following:  A British citizen  A settled person  A holder of refugee status  An EEA citizen with pre-settled status  A person with leave to remain as a partner under paragraph 352A (family reunion) o As a partner on the 10-year route to settlement  If relevant, the second grant of leave must have been o On the same grounds as above or o As a holder of leave under the destitution domestic violence concession (DVCC) or o As the holder of limited leave to remain under paragraph DVILR 1.2  And e-DVILR 1.3 o The applicant must not fall for refusal under the suitability criteria. o The applicant must provide evidence that during the last period of limited leave in a partner category described above the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.  There is no requirement that the applicant has leave to remain at the time of making the application. Applicable Rules Section DVILR: Indefinite leave to remain (settlement) as a victim of domestic abuse DVILR.1.1. The requirements to be met for indefinite leave to remain in the UK as a victim of domestic abuse are that- 1. (a) the applicant must be in the UK; 2. (b) the applicant must have made a valid application for indefinite leave to remain as a victim of domestic abuse; 3. (c) the applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain; and 4. (d) the applicant must meet all of the requirements of Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic abuse. Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic abuse E-DVILR.1.1. To meet the eligibility requirements for indefinite leave to remain as a victim of domestic abuse all of the requirements of paragraphs E-DVILR.1.2. and 1.3. must be met. 1. E-DVILR.1.2. The applicant’s first grant of limited leave under this Appendix must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., D-LTRP.1.1., or D-LTRP.1.2. of this Appendix, or as a partner of a refugee granted under Appendix Family Reunion (Protection), and any subsequent grant of limited leave must have been: 2. (a) granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., D-LTRP.1.1. or D-LTRP.1.2. of this Appendix; or 3. (b) granted to enable access to public funds pending an application under DVILR and the preceding grant of leave was granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1. or D-LTRP.1.2. of this Appendix; or 4. (c) granted under paragraph D-DVILR.1.2. E-DVILR.1.3. The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse. Section D-DVILR: Decision on application for indefinite leave to remain as a victim of domestic abuse D-DVILR.1.1. If the applicant meets all of the requirements for indefinite leave to remain as a victim of domestic abuse the applicant will be granted indefinite leave to remain. D-DVILR.1.2. If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic abuse only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months. D-DVILR.1.3. If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic abuse, or further limited leave to remain under paragraph D-DVILR.1.2. the application will be refused. Section S-ILR: Suitability for indefinite leave to remain S-ILR.1.1. The applicant will be refused indefinite leave to remain on grounds of suitability if any of paragraphs S-ILR.1.2. to 1.10. apply. S-ILR.1.2. The applicant is currently the subject of a deportation order. S-ILR.1.3. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years. S-ILR.1.4. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 15 years has passed since the end of the sentence. S-ILR.1.5. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence. S-ILR.1.6. The applicant has, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record. S-ILR.1.7. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law. S-ILR.1.8. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-ILR.1.3. to 1.6.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK. S-ILR.1.9. The applicant has failed without reasonable excuse to comply with a requirement to- 1. (a) attend an interview; 2. (b) provide information; 3. (c) provide physical data; or 4. (d) undergo a medical examination or provide a medical report. S-ILR.1.10. The presence of the applicant in the UK is not conducive to the public good because the Secretary of State: 1. (a) has made a decision under Article 1F of the Refugee Convention to exclude the person from the Refugee Convention or under paragraph 339D of these Rules to exclude them from humanitarian protection; or 2. (b) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because there are reasonable grounds for regarding them as a danger to the security of the UK; or 3. (c) considers that they are a person to whom sub-paragraph (a) or (b) would apply except that (i) the person has not made a protection claim, or (ii) the person made a protection claim which has already been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of these Rules; or 4. (d) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because, having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community of the UK. S-ILR.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S- ILR.2.2. to 2.4. apply. S-ILR.2.2. Whether or not to the applicant’s knowledge – 1. (a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or 2. (b) there has been a failure to disclose material facts in relation to the application. S-ILR.2.3. DELETED. S-ILR.2.4. A maintenance and accommodation undertaking has been requested under paragraph 35 of these Rules and has not been provided. S-ILR.3.1. When considering whether the presence of the applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored. S-ILR.4.1. The applicant may be refused on grounds of suitability if any of paragraphs S-ILR.4.2. to S-ILR.4.5. apply. S-ILR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful). S-ILR.4.3. The applicant has previously made false representations or failed to disclose material facts for the purpose of obtaining a document from the Secretary of State that indicates that he or she has a right to reside in the United Kingdom. S-ILR.4.4. The applicant has failed to pay litigation costs awarded to the Home Office. S-ILR.4.5. One or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500. How to apply  Online application form SET(DV)  Fee of £2,389 for applicant + each dependent or evidence of destitution (application includes a fee-waiver section). o Not payable if the applicant has LTR under DDVC  No HIS payable in ILR Application  Supporting evidence – specified by Home Office Requirement for a fee waiver  Submit SET(DV) without the fee.  provide evidence that the Applicant has no means to pay the specified fee.  Info and evidence going to: o Type and adequacy of accommodation o Amount of rent or mortgage o Applicant’s contribution towards the rent or mortgage o Applicant’s income and outgoings in terms of spending on food, utility bills Subsisting breakdown evidence requirement The standard of proof is the civil standard: the balance of probabilities.  Conclusive evidence examples: o Criminal conviction for DV o Final injunction, non-molestation order or other protection order (not an ex-parte or interim order). Where the order refers to any undertakings made in writing by either partner, these must be provided. o Full details of a relevant police caution is issued against the sponsor  Strong evidence examples: o GP or hospital doctor report o Social services letter o Forced marriage or DV protection order o CPS charging decision o Evidence from the chair of the MARAC stating that they have been the victim of domestic violence o Letter from organisation supporting victims of DV confirming assessed as victim of DV and support provided o Letter or statement from independent witness.  Moderate evidence examples o Arrest o Ex parte orders o Interim orders o Undertakings  Weak evidence examples: o Power of arrest o Letter from official source (e.g. advice agency or refuge) o Applicant’s statement o Letter, statement, email, text or photos repeating applicant’s account of DV Out of time DV ILR Applications HO policy states that caseworkers should consider:  The age of evidence being relied upon (this may impact verifying the evidence).  When the relationship permanently broke down  If there are any official reports, for example from the police, that show passports and travel documents were withheld and the police had to retrieve them  The time between the alleged breakdown of the relationship and the application, including how long the applicant has been living apart from the partner.  Reasons given for the delay in submitting the applications. Outcomes of an application DVILR  Grant of indefinite Leave to Remain (ILR) if all requirements are met (no conditions can attach to ILR but if an ILR holder stays outside the UK for 2 years, their leave will lapse).  Grant 30 months’ leave if the only grounds of refusal are that the Applicant has been: o Convicted and sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence, or o Within the 24 months before application is decided, convicted of or admitted an offence, for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.  Refused- Home Office treats a refusal of a DVILR application as one which can be subject to administrative review. no appeal right. Immigration Offences Immigration Act 1971  Section 24(1): Illegal Entry and Similar Offences o (a) knowingly enters the UK without leave or in breach of a deportation order o (b) knowingly (i) overstays or (ii) fails to observe a condition of leave o (c) enters lawfully without leave as crew but then fails to leave within time o (d) fails to comply with requirement to report to medical officer and other similar o (f) disembarks after removal o (g) embarks after an order not to o (h) breaches a bail condition under Sch 10 IA 2016  Section 24A: Deception o (a) he obtains or seeks to obtain leave to enter or remain in the UK OR o (b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him  Section 24B: Knowingly working illegally  Section 25(1): A person commits an offence if he - o (a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union o (b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual; and o (c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.  Section 25A: Helping an asylum-seeker to enter the United Kingdom o (1) A person commits an offence if-  (a) he knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom of an individual, and  b) he knows or has reasonable cause to believe that the individual is an asylum seeker o (3) Subsection (1) does not apply to anything done a by a person acting on behalf of an organisation which-  (a) aims to assist asylum-seekers, and  (b) does not charge for tis services  Section 25B: Assisting entry to the UK in breach of deportation or exclusion order.  (1) A person commits an offence if he-  a) does an act which facilitates a breach or attempted breach of a deportation order in force against an individual who is a citizen of the European Union, and  b) knows or has reasonable cause for believing that the act facilitates a breach or attempted breach of the deportation order.  (2) Subsection (3) applies where the SoS has made an order excluding an individual from the UK on the ground of public policy, public security or public health, other than a temporary exclusion order.  (3) a person commits an offence if he-  a) does an act which assists the individual to arrive in, enter or remain, or attempt to arrive in, enter or remain, in the UK,  b) knows or has reasonable cause for believing that the act assists the individual to arrive in, enter or remain or attempt to arrive, enter or remain,, in the UK, and  c) knows or has reasonable cause for believing that the SoS has made an order excluding the individual from the UK on the grounds of public policy, public security or public health.  Section 26: General offences in connection with administration of Act o (1) A person shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases-  a) if, without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act;  b) if, without reasonable excuse, he refuses or fails to furnish or produce any information in his possession, or any documents in his possession or control, which he is on an examination under that Schedule required to furnish or produce;  c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of a relevant enactment a return, statement or representation which he knows to be false or does not believe to be true;  d) if, without lawful authority, he alters any certificate of entitlement, entry clearance, work permit or other document issued or made under or for the purposes of this Act, or uses for the purposes of this Action, or has in his possession for such use, any passport, certificate of entitlement, entry clearance, work permit or other document which he knows or has reasonable cause to believe to be false;  e) if, without reasonable excuse, he fails to complete and produce a landing or embarkation card in accordance with any order under Schedule 2 to this Act;  f) if, without reasonable excuse, he fails to comply with any requirement of regulations under section 4(3) or of an order under section 4(4) above;  g) if, without reasonable excuse, he obstructs an immigration officer or other person lawfully acting in the execution of this Act. Asylum and Immigration (Treatment of Claimants etc) Act 2004)  S2: Entering UK without a passport  S4: Trafficking people for exploitation  S35: Offence of failing, without reasonable excuse, to cooperate with SSHD’s obtaining of travel document to effect removal Forgery and Counterfeiting Act 1981  S2: The offence of copying a false instrument  S4: The offence of using a copy of a false instrument Immigration and Asylum Act 1999  S31A (inserted by the Nationality and Borders Act 2022): enables the introduction of regulation on penalties for drivers and their employers/contractors where there has been a failure to secure goods vehicle(s)  S84: Pro

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