Administrative removal is the process by which certain categories of people may be removed from the UK. Usually, individuals are removed from the UK because they breached the immigration law. Deportation involves an entirely distinct legal process and is reserved for those who have committed serious criminal offences.
Under Section 10 of the Immigration and Asylum Act 1999, the person is liable to administrative removal if:
they fail to comply with conditions of leave to enter or remain
they are illegal entrants or overstayers
they obtain leave to remain by deception
they are the spouse, civil partner or child under 18 of a person in respect of whom removal directions have been given.
Removal, Enforcement and Detention Notice and Section 120 Notice.
The Home Office has a statutory duty to notify those liable for removal. The notice must be given within 7 calendar days for those who are not detained and 72 hours for those in detention. It is possible to challenge the decision during this notice period. The notice tells the individual:
that they are liable to removal from the UK
the country they will be removed to
information about the consequences of being in the UK illegally and information about help available to return home.
There is a 3-month removal window once the notice period has expired to remove the individuals.
Section 120 notice requires a person to inform the Home Office about any grounds, not previously raised, as to why the person should be allowed to remain in the UK. This should be done as soon as reasonably practicable.
The Home Office has the power to make a deportation order by virtue of Section 5 of the Immigration Act 1971. A deportation order requires an individual to leave the UK and prohibits re-entry while the order is still in force. According to Part 13 of the Immigration Rules the person can be deported where:
the Secretary of State consider the individual’s deportation to be ‘conducive to the public good and in the public interest
they are the spouse, civil partner or child under 18 of a deportee
they are over the age of 17 and have been convicted of an offence punishable with imprisonment
Is it possible to re-enter the UK after being deported or removed?
It is difficult to re-enter the UK if the individual has been deported or removed in less than 10 years without the successful revocation of deportation or removal order. However, family members of a deportee can seek to return to the UK without applying for revocation of the deportation or removal order.
Challenging a Deportation or Administrative Removal Order.
There is no longer an automatic right to appeal a deportation or removal decision. However, if a person is granted pre-settled or settled status under the EUSS or has a valid EUSS family permit and a decision to make deportation is taken on or after 11 pm on January 31 2020, there is a right to appeal. The individuals can also claim on human rights or protection grounds.
The person can apply for a judicial review to challenge the Home Office’s decision. The court will not substitute the Home Office’s decision but only decide whether the decision was lawful. A judicial review can be used only where there is no other avenue of appeal.CONSULTATION
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